Case: Nichhalbhai Vallabhai &amp; Others Vs. Jaswantlal Zinabhai &amp; Others

hand and the "partition of goods and properties" on the other. This constitutes, therefore, a clear allegation of severance of status not only of the three branches but also of the members of the branch of the first defendant - Nichhalbhai. In that same paragraph the plaintiff goes on to say that the properties of the family should be separately distributed and that his share - 1 /105 - of movable and immovable properties should be separated and delivered to him. It is also important to notice that in paragraph 6 of the plaint the plaintiff has stated that the properties were and are held in common" and in paragraphs 8, 9, 10 and 12 of the plaint the word "distribution" is deliberately used. It is a well-known canon of interpretation that it is the duty of the Court not to confine itself to the force of a particular expression but to collect the intention from the whole instrument taken together. Having, therefore, regard to the statement of the plaintiff in all the paragraphs of the plaint and interpreting the plaint as a whole we are satisfied that the High Court was right in holding that the suit was not a suit brought for severance of joint family status but was a suit merely for partition by metes and bounds.4. We shall then proceed to consider the next question whether the High Court was right in allowing the application to the plaintiff for amending the plaint by deleting the words "svus Ns (and have)" in "ves Nhv (i.e. paragraph 2 and the words and are)" in paragraph e of the plaint. It was contended by Mr. Purshotam Trikumdas on behalf of the appellants that by allowing the amendment the High Court had permitted the plaintiff to convert the suit into another of a different and inconsistent character. It was submitted by Counsel that if the suit was one for severance of joint family status the plaintiff was bound to fail in limine in view of the decision of the Bombay High Court in (1892) ILR 16 Bom 29 (FB). It was contended that the plaintiff cannot be allowed to escape this consequence by amending a suit as one for partition by metes and bounds. We do not think that there is any warrant for this argument. We consider that the High Court was right in taking the view that the words "vus Ns ( and have)"and the words "vus Nhvs (i.e. and are)" were put in paragraph 2 and 3 of the plaint by mistake and inadvertence and it was, therefore, a proper case in which the court should exercise its discretion under O. 6, R. 17, Civil Procedure Code by allowing the amendment to be made. It was contended by Mr. Purshotam Tricumdas that the plaintiff was introducing a new case by making the amendment. We do not accept this argument as correct. We have already given reasons for holding that even apart from the amendment the plaint should be properly construed as asking for relief for partition by metes and bounds and not for severance of joint family status. We are of opinion that the words "vus Ns (and have)" "ves Nhvs in paragraph 2 and the words (i.e. and are)" in paragraph 3 of the plaint have been inserted on account of some mistake or misapprehension on the part of the plaintiff and it was, therefore a proper, case in which the Court allowed the plaint to be amended. The reason is that if the amendment is refused the plaintiff may have to bring another suit and the object of the rule for allowing amendments to the plaint is to avoid multiplicity of suits. The present case falls within the principle laid down by this Court in L. J. Leach and Co. Ltd. v. Jardine Skinner and Co., 1957 SCR 438 : )S) AIR 1957 SC 357 ). In that case the appellants had filed a suit for damages for conversion against the respondents on the allegations that the respondents were the agents of the appellants, that the appellants had placed orders for certain goods with the respondents, and that the respondents had actually imported the goods but refused to deliver them to the appellants. The suit was dismissed on the findings that the parties stood in the relationship of seller and purchaser, and not agent and principal and that the title in the goods could only pass to the appellants when the respondents appropriated them to the appellants contracts. In appeal before the Supreme Court, the appellants applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for nondelivery of the goods. The application was allowed by this Court on the ground that it was a fit case in which the amendment should be allowed and the fact that a fresh suit on the amended claim was barred by limitation is only a factor to be taken into consideration in the exercise of the discretion as to whether the amendment should be ordered or not, and does not affect the power of the court to order it, if that is required in the interests of justice. The case of the plaintiff for amendment in the present case stands on a stronger footing because there is no. question of limitation involved and we are of the opinion that the High Court was right in permitting the amendment to be made and remanding the suit to the trial Court for a fresh hearing in accordance with law.5. It should be added that Mr. Purshotam Trikumdas submitted that he is not challenging the correctness of the decision of the Full Bench in Apajis case, (1892) ILR 16 Bom 29 (FB) though before the High Court the correctness of the decision was questioned. We should like to make it clear that we are not expressing any opinion with regard to the correctness of that decision or its applicability to this case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is acanon of interpretation that it is the duty of the Court not to confine itself to the force of a particular expression but to collect the intention from the whole instrument taken together. Having, therefore, regard to the statement of the plaintiff in all the paragraphs of the plaint and interpreting the plaint as a whole we are satisfied that the High Court was right in holding that the suit was not a suit brought for severance of joint family status but was a suit merely for partition by metes anddo not think that there is any warrant for this argument. We consider that the High Court was right in taking the view that the words "vus Ns ( and have)"and the words "vus Nhvs (i.e. and are)" were put in paragraph 2 and 3 of the plaint by mistake and inadvertence and it was, therefore, a proper case in which the court should exercise its discretion under O. 6, R. 17, Civil Procedure Code by allowing the amendment to beare of opinion that the words "vus Ns (and have)" "ves Nhvs in paragraph 2 and the words (i.e. and are)" in paragraph 3 of the plaint have been inserted on account of some mistake or misapprehension on the part of the plaintiff and it was, therefore a proper, case in which the Court allowed the plaint to be amended. The reason is that if the amendment is refused the plaintiff may have to bring another suit and the object of the rule for allowing amendments to the plaint is to avoid multiplicity ofcase of the plaintiff for amendment in the present case stands on a stronger footing because there is no. question of limitation involved and we are of the opinion that the High Court was right in permitting the amendment to be made and remanding the suit to the trial Court for a fresh hearing in accordance with law.5. It should be added that Mr. Purshotam Trikumdas submitted that he is not challenging the correctness of the decision of the Full Bench in Apajis case, (1892) ILR 16 Bom 29 (FB) though before the High Court the correctness of the decision was questioned. We should like to make it clear that we are not expressing any opinion with regard to the correctness of that decision or its applicability to this case.