IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 WP(C).No. 36462 of 2008(N) -------------------------- (I.A.1872/06 IN O.S.NO.243 OF 2001 OF THE PRL. SUB COURT, KOLLAM) PETITIONERS: --------------- 1. SARASWATHY PILLAI, D/O.AMMUKUTTY PILLAI, RESIDING AT MARIYATHU VEEDU, MYNAGAPPALLY VILLAGE KUNNATHOOR TALUK, KOLLAM DISTRICT. 2. VIJAYAGOPAL, S/O.PARAMESWARAN PILLAI, RESIDING AT 'GANGA', KALLELIL BHAGOM MURI, KALLELIL BHAGOM VILLAGE, KOLLAM DISTRICT. 3. VENUGOPAL, S/O.PARAMESWARAN PILLAI, RESIDING AT MARIYATHU VEEDU, MYNAGAPPALLY VILLAGE KUNNATHOOR TALUK, KOLLAM DISTRICT. 4. PRASANNA AMMA, D/O.SARASWATHY PILLAI, RESIDING AT OTTATHENGIL PAIYANALLOOR NOORANADU ALLEPPEY DIST. 5. GIRIJA AMMA, D/O.SARASWATHY PILLAI, RESIDING AT THENGUVILAYIL, THAMARAKULAM, KOLLAM DISTRICT. 6. ANANTHANARAYANAN, S/O.GOPALAKRISHNA PILLAI, RESIDING AT OTTATHENGIL PAIYANALLOOR NOORANADU ALLEPPEY DISTRICT. 7. BENJAMIN JACOB, MANAGER, TNP THEATRE, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE RESPONDENT: --------------- RAJAGOPAL, S/O.PARAMESWARAN PILLAI, RESIDING AT 'REVATHI', PADA SOUTH, KARUNAGAPPALLY, KOLLAM DISTRICT. ADV. SRI.K.S.MANU (PUNUKKONNOOR) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON 11/12/2009 DELIVERED THE FOLLOWING: APPENDIX(WPC 36462/08) PETITIONERS' EXTS.: EXT.P1: TRUE COPY OF THE APPLICATION FOR AMENDMENT IN I.A.NO.1872/06 IN O.S.NO.243/01 ON THE FILE OF THE COURT OF THE PRINCIPAL SUB JUDGE, KOLLAM DATED 20.6.2006. EXT.P2: TRUE COPY OF THE OBJECTION FILED TO THE APPLICATION FOR AMENDMENT DATED 3.11.2006. EXT.P3: TRUE COPY OF THE ORDER IN I.A.NO.1872/06 IN O.S.NO.243/01 ON THE FILE OF THE PRINCIPAL SUB JUDGE, KOLLAM DATED 14.11.2008. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 36462 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 11th December, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To call for the records leading to the passing of Ext.P3 order and set aside the same. 2. To dismiss I.A.No.1872/2006 in O.S.No.243/2001 on the file of the Court of the Principal Subordinate Judge of Kollam. 3. To issue a writ in the nature of mandamus directing the court below to pronounce judgment on the unamended plaint. 2. Petitioners are the defendants in O.S.No.243 of 2001 on the file of the Principal Sub Court, Kollam. Suit is for declaration and injunction, and the respondent is the plaintiff. Plaintiff and defendants 2 to 5 are admittedly the children of late Parameswaran Pillai and the first defendant. 6th defendant in the suit is the son of the 4th defendant and 7th defendant, presently, manager of a cinema theatre situated in one of the items of the plaint properties. Plaintiff in the suit sought for a declaration that Will No.3 of 1988 of S.R.O., Karunagappally is the last Will of late Parameswaran Pillai, and a later Will, namely, Will No.24 of 1997 of S.R.O., Sasthamcotta W.P.C.No.36462/08 - 2 - allegedly executed by the above said testator is null and void. A decree of prohibitory injunction was also sought for not to distrub the possession and enjoyment of the plaintiff over plaint B schedule property in violation of the provisions contained in Will No. 3 of 1988. Suit claim was resisted by the petitioners/defendants filing a written statement in which among other contentions, they contended that Will No.24 of 1997 was the last Will of late Parameswaran Pillai. After the case came up in the list for trial, both sides let in evidence with the plaintiff examining six witnesses as P.W.1 to P.W.6 and the defendants three witnesses, D.W.1 to D.W.3. Plaintiff thereafter moved an application for amendment of the plaint stating that after verification of the Will bearing No.24 of 1997 produced belatedly by the defendants, he found that it had been forged by impersonation and not executed by late Parameswaran Pillai. The petitioner/plaintiff sought for amendment of the plaint to incorporate allegations that the Will bearing No.24 of 1997, which was relied by the defendants as the last Will of late Parameswaran Pillai, was a forged and fabricated document created by impersonation. In moving such amendment of the plaint, the cancellation of a gift deed and execution of a subsequent gift deed by the first defendant were also impeached as null and void contending that the previous gift deed executed by her W.P.C.No.36462/08 - 3 - had already come into effect. An additional relief of declaration with respect to the cancellation of the gift deed and also the subsequent gift deed executed by the first defendant, to treat both of them as null and void and not binding on the plaintiff nor affecting his rights over the properties, some of the plaint items, was also canvassed. P1 is the copy of that amendment application. The defendants filed P2 objection to that application contending that the new plea canvassed by the amendment proposed to the plaint is against the case advanced previously and the introduction of such a new case cannot be allowed at the belated stage after the entire evidence had been recorded. The learned Subordinate Judge, after hearing both sides, allowed the amendment application vide P3 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Learned counsel for the petitioners/defendants contended that by way of amendment a new case inconsistant with the previous case set up in the plaint was sought to be introduced at a belated stage after evidence is recorded and the allowing of that application has caused prejudice and injury to the defendants. Previously the case advanced by the plaintiff was W.P.C.No.36462/08 - 4 - that Will No. 24 of 1997 was signed by late Parameswaran Pillai, but, not on his free will, but by exertion of undue influence and coercion by the defendants. Mental capacity of late Parameswaran Pillai to execute the document was also impeached by the plaintiff to contend that the previous Will No.3 of 1988 was his last Will. By way of amendment a new case is sought to be introduced that the Will was not signed by late Parameswaran Pillai and it was created by the defendants by impersonation, and so much so, it was a fraudulent document. Such a case inconsistant with the case set up in the plaint at the belated stage after the evidence of both parties had been recorded would cause serious prejudice to the defendants, according to the learned counsel. So far as the challenge raised against the cancellation of the gift deed by the first defendant and subsequent registration of another gift deed, which too was sought by way of amendment, learned counsel submitted that the defendants have no serious objection in incorporating the allegations thereof and also the relief claimed thereunder in P1 amendment application. But, with respect to the challenges against Will No.24 of 1997, the new case advanced by way of amendment that it was created by impersonation conflicting with the earlier case advanced that the Will was got signed by late Parameswaran Pillai under the undue influence of W.P.C.No.36462/08 - 5 - Paramwswaran Pillai, at any rate, cannot be allowed is the submission of the counsel. On the other hand, learned counsel appearing for the respondent/plaintiff contended that the Will was produced belatedly by the defendants, only after the case was posted in the special list for trial, and then only, after perusal, the plaintiff came to know the document is a forged one created by impersonating late Parameswaran Pillai, and it was not signed by him. Belated production of that Will by the defendants prevented the plaintiff from advancing the case presented in the amendment earlier, and immediately after perusal of the Will produced, according to the learned counsel, the application for amendment was moved. No interference with P3 order passed by the learned Sub Judge, in the given facts of the case, according to the learned counsel, is called for as the amendment sought for and allowed by the court below is essential for a fair and proper disposal of the suit on its merits. 4. A copy of the plaint in the suit handed over to me at the time of hearing by the learned counsel for the petitioners/defendants. Perusing the copy of plaint with reference to P1 amendment application, I find there is much force in the submission made by the counsel for the defendants that a new case inconsistant with the previous case canvassed was sought to be introduced under the W.P.C.No.36462/08 - 6 - proposed amendment. Whereas previously, the plaintiff has contended that the Will No.24 of 1997 came into existence on the undue influence exerted by defendants dominating the Will of late Parameswaran Pillai whose mental capacity to take rational decisions at the point of time when the Will came into existence was also disputed by way of P1 amendment application, a different case was advanced that the Will was not signed by him, but, it is the creation of impersonation by another at the instance of the defendants. The divergent case canvassed, which is conflicting and inconsistant with one another, cannot go together and permitting the plaintiff to advance such diametrically opposite cases, no doubt, will cause serious prejudice to the defendants. The defendants must know in advance what is the case of the plaintiff which they have to meet and defend and after their defence was delivered to the case advanced by the plaintiff and the trial was practically over with both sides leading evidence in respect of their respective cases, presenting a different case by the plaintiff and that too inconsistant with his previous case pleaded in the plaint would severely jeopardise the fair trial of the case. Whereas the defendants can canvass inconsistant defences to resist the suit claim the plaintiff has to present a consistant case and any deviation thereof is permissible only if the court is satisfied that it W.P.C.No.36462/08 - 7 - is unlikely to cause any prejudice to the defendants in meeting the case of the plaintiff. More than that, the vital question involved for adjudication in the suit on the disputed facts involved is which is the last Will of late Parameswaran Pillai. Plaintiff has claimed Will No.3 of 1988 is his last Will and the defendants, Will No.24 of 1997. Whereas Will No.3 of 1988 executed by late Parameswaran Pillai is conceded by the defendants, it is their case the testator had executed the later Will of 24 of 1997 by which the previous Will was revoked. Needless to point out, that the burden is on the propounder, in the present case, the defendants to show that Will No.24 of 1997, the later Will had been duly executed by late Parameswaran Pillai when its execution has been challenged by the plaintiff whatever be the grounds for impeaching that testament. The plaintiff has impeached the Will No.24 of 1997 in the suit seeking a declaration that it is void will not absolve the defendants from proving due execution of that testament as mandated by law. Burden to prove the execution of the Will is always on the propounder who rely on that testament and, in the present case, no doubt, the defendants. When such be the position of law, the inconsistant case advanced by the plaintiff by way of amendment that the Will is a forged document created by impersonation differing from the case advanced in the W.P.C.No.36462/08 - 8 - plaint that there was no due execution, but, signature of the executant in the testament was the product of undue influence dominating the will of the testator has only innocuous value and not of much significance as the vital dispute to be resolved in the case is which is the last testament of late Parameswaran Pillai, whether it is Will No.3 of 1988 as alleged by the plaintiff or Will No.24 of 1997 relied by the defendants. P1 amendment application moved by the plaintiff, that too at the belated stage, in the above circumstances, deserve only to be discarded as not material or relevant for consideration. Though the learned counsel for the petitioners/defendants contended that they have no serious objection with respect to the proposed amendment relating to the challenges against the cancellation of the gift deed and execution of another gift deed by the first defendant and the reliefs claimed in respect thereof under P1 application moved by the plaintiff, I find, such an amendment with respect to the questions relating to the gift deeds cancelled or executed by the first defendant even if they relate to the plaint properties, that too after the entire evidence is recorded in the case, wherein the dispute related to the question which is the last Will of Parameswaran Pillai, and that alone, was totally unwarranted and, in fact, impermissible. Challenge against the cancellation of the gift W.P.C.No.36462/08 - 9 - deed or execution of a fresh gift deed by the first defendant, in the given facts of the case, which was never pleaded nor agitated by the parties prior to commencement of the trial, and, in fact, a different question unconnected with the dispute presented in the case, cannot be allowed by way of amendment as sought for by the plaintiff. The learned Sub Judge has not adverted to any of those aspects while passing P3 order allowing P1 amendment application of the plaintiff. P3 order of the learned Sub Judge is liable to be set aside and I do so. P1 application for amendment of the plaint shall stand dismissed and amendment, if any, carried out in the plaint on the basis of P3 order shall be struck off. The court below is directed to dispose the suit, as expeditiously as possible, taking note of the observations made above and in accordance with law, at any rate, before the closing of the court for mid summer vacation, 2010. Writ Petition is disposed as indicated above. srd S.S. SATHEESACHANDRAN, JUDGE