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Principles Governing Amendment Applications - Partition Suit 2009 Sc Case

Principles Governing Amendment Applications - Partition Suit 2009 Sc Case

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03/01/2013

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REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. 4586 OF 2009(Arising out of SLP (C) No.23748 of 2007)P.A. JayalakshmiAppellantVersusH. Saradha & Ors.RespondentsJ U D G M E N TS.B. Sinha, J.
1.Leave granted.2.Distinction between Order VIII Rule 9 of the Code of Civil Procedureand Order VI Rule 17 thereof is the question involved in this appeal. Itarises out of a judgment and order dated 4.9.2007 passed by a learned SingleJudge of the High Court of Judicature at Madras in CRP (NDP) No.1643 of 2007.
 
3.Before embarking on the said question, we may notice the admittedfact:Anantha Subramania Iyer had two brothers. They were members of a joint family. By reason of a deed of partition dated 23.8.1962, the said jointfamily properties were partitioned in terms whereof the properties involvedin the present suit were allotted to Anantha Subramania Iyer. He had twosons and five daughters. Appellant is one of them. He allegedly executed aWill on or about 18.3.1993 in terms whereof he bequeathed the property insuit in favour of his wife. The said Will was said to have been attested byhis sons. Anantha Sumramania passed away on 19.3.1993. Indisputably, hiswife also passed away on 13.8.1993. P.A. Ganesan, one of the sons of Anantha Subramania Iyer passed away on 24.5.1998 leaving behind his wifeand three daughters who are respondent Nos.1 to 4 herein. The saidrespondents filed a suit for partition in the year 2004. According to them,the suit property was a joint family property and both the brothers beingcoparceners had 1/3
rd
share therein. Apart therefrom, they claimed their share also in the property which P.A. Ganesan had inherited from his father,and, thus, the same came to 8/21 for each of the sons of AnanthaSubramania Iyer and 1/21 share so far as his daughters including theappellant are concerned.
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4.Appellant filed her written statement on 7.4.2006, inter alia,contending that after the death of Anantha Subramania Iyer, the properties insuit devolved upon each of his children equally as a result whereof sheinherited 1/7
th
share therein. Allegedly, she discovered on or about 5.2.2007that Anantha Subramania Iyer had executed a Will in favour of his wife. Onor about 1.3.2007, she filed an application for leave to file additional writtenstatement. By an order dated 27.3.2007, the learned Trial Judge dismissedthe said application, opining :10.The petitioner/4
th
defendant has filed this petition after the start of the enquiry proceedings inthis suit and after examination of the PW1 in fullstating that one Anantha Subramania Iyer hadexecuted a WILL on 18.3.93, that a copy of thesame traced out only now and hence it is to beconsidered that mentioning of the same in theadditional written statement itself would be a belated one and further failure to mention this inthe written statement filed on 7.11.2006 and after the start of trial filing a petition seeking permissionto file additional written statement with regard to aWILL which has not been mentioned in the writtenstatement seems not acceptable and the petition isa belated one.”5.Aggrieved thereby and dissatisfied therewith, the appellant filed aCivil Revision Petition which by reason of the impugned judgment has beendismissed by the High Court, stating :“On a careful consideration of the reasons stated by the learned senior counsel appearing for the
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