Syed Vs Amina Umma and Others

@JUDGMENTTAG-ORDER

T.C. Raghavan, J

1. The first respondent in the lower court, who is the plaintiff in the suit, is the petitioner in this Civil Revision Petition and the matter arises out of an application for amendment of the written statement of defendants 1 to 4. The suit is for partition of six items of immovable property and for a separate possession of the plaintiff''s two out of ten shares in the plaint properties. Items 1 to 5 have been alienated to one Ahammad Kutty Haji by the deceased brother of the plaintiff acting as de facto guardian and defendants 1 to 4 are the legal representatives of the said Ahammad Kutty Haji. The suit as brought by the plaintiff is for partition of the plaint items ignoring the alienation, treating it as ab initio void and ineffective. The parties are Muslims. Issues were framed in the suit on 15--4--1954 and on 11--2--1956 defendants 1 to 4 filed the application for amendment of their written statement seeking to add 134 more items of property in the suit and claiming a general partition of the whole estate, so that they might be enabled to work out their equities as bona fide purchasers for value by getting the alienated items allotted to them. The plaintiff objected to the amendment on the grounds that there was inordinate delay in seeking the amendment, that defendants 1 to 4 were not entitled to any equities, as alienees from a de facto guardian of a Muslim minor had no such equities, that the amendment if allowed would change the subject-matter of the suit and that it might even compel him to pay additional court-fee and might also necessitate the impleading of new parties to the suit. The lower court allowed the amendment and hence the plaintiff has come up in Revision.

2. The learned counsel for the petitioner contends that the lower court has not considered the objections raised by the plaintiff in his counter. He also invites my attention to a few decisions to the effect that a de facto guardian in Muhammadan Law has no power to convey to another any right or interest in immovable property which the transferee can enforce against the minor and consequently the question of adjustment of equities does not arise in a case like the present one. He further contends that the plaintiff is entitled to sever his status of a co-sharer in such of the properties as he does not wish to retain as a co-sharer and hence the plaintiff cannot be compelled to bring a suit for general partition of all the properties in which he is a co-sharer. One of the decisions relied on by the petitioner''s learned counsel on this part of his case is Relumal v. Huzur Baksh, AIR 1947 Sind 179, following a Bench decision of the Madras High Court in 1916 Mad. 248, Moideensa Rowthen v. Mahammad Kasim Rowthen.

3. The next contention urged on behalf of the petitioner is that by amendment of the pleadings, the subject-matter of the suit cannot be changed. For this, reliance is placed on AIR 1922 249 (Privy Council) . Therein it was held that full powers of amendment should always be liberally exercised, but nonetheless no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.

4. The learned counsel for the respondents, cited three decisions before me in answer to the first contention raised on behalf of the petitioner. But I find that two of the decisions were given in cases arising under Hindu law, where the position is different and hence they have no application to the present case. The case that relates to Muslims is Abdul Rahman and Another Vs. Hamid Ali Shah and Others, . It lays down that an alienee of a specific item from some of the co-owners is not precluded from bringing a suit for general partition of all the items, though he has purchased only one item, to enable him to work out his equities. The facts in that case disclose that there was a previous suit for partition of the alienated item only and the alienees objected to this and further contended that a suit for general partition should be brought. This contention was over-ruled and subsequently the alienees themselves brought another suit for general partition. It was held in appeal in that suit that the alienees were competent to bring such a suit for general partition in spite of their being entitled only to one item. This decision really supports the petitioner in the present case.

5. In the light of the above discussion, the legal position becomes clear that a Muslim co-sharer is entitled to ask for his share in any one or more of the items of property and it is not obligatory for him to include all the items in which he has a share in the same suit. He cannot be compelled to bring a suit for general partition and the terminology, viz., "partial partition" and the principles of Hindu Law are inappropriate and inapplicable to such cases. In the present case the amendment, in effect, is forcing a suit for general partition on the plaintiff. In the above state of the law and the circumstances of the case, I am of the opinion that the lower court has acted illegally in the exercise of its jurisdiction in allowing the amendment and hence I allow the revision, set aside the order of the lower court and dismiss I. A. No. 224 of 1956 with costs throughout.

The lower court is directed to dispose off the suit expeditiously.