Decided on September 21,1950



- (1.) THE pltf. is the petnr. In O.S. no. 4 of 1949 on the file of the Dist. Munsifs Ct. of Trichinopoly, he sued one Parvathammal on a promissory note which he alleged she had executed on 11-2-1946. THE note recites that the sum of Rs. 1,000 referred to in it was borrowed "for the purpose of discharging the hand loans taken for the purpose of the funeral expenses, etc., of my husband who died last month & for other family expenses." Parvathammal filed a statement denying the execution of the note & also denying that she had borrowed any money from the pltf. Certain issues were framed & subsequently Parvathammal died. THEreupon the resp. before me a minor named Dandayuthapani alias Ayyaaami was added as deft. 2 on the ground that he was the adopted son of Parvathammal -& her hushand, Subbiah Gurukkal. THEreafter, the pltf. wanted to amend the plaint in order to secure two results (1) to convert the suit which was originally on the note into one on the debt; and (2) to make the estate of Suhbiah Gurakkal liable for the decree that might be made in his favour in the suit. This petn. for amendment was opposed on behalf of Dandayuthapani the adopted son. THE learned Dist. Munsif found that the proposed amendment would not cause any inconvenience to the parties, that it could not be said to introduce a plea inconsistent with the original plea, hut that "it was certainly a new & additional plea which the pltf. could very well have taken even originally". But nonetheless he dismissed the petn. for amendment on the ground that "the effect of allowing a new amendment will be, therefore, to take away a valuable plea of limitation which deft. 2 will have if a fresh suit is now filed."
(2.) IT appears to me that the order of the learned Dist. Munsif is erroneous. There can be no doubt that if Parvathammal had been alive the plaint could have been amended not only to convert the suit into one under the debt but also to make the estate of Subbiah Gurukkal in her hands available for any decree that might bo passed. Mr. Ramachandra Ayyar, the learned advocate for the resp. very strongly argued that even if Parvathamraal had been alive the plaint could not have been amended in such a manner as to make the estate of Subbiah Gurukkal liable. His argument was this : In the plaint as originally filed Parvathammal was being sued in her personal capacity. To allow the amendment would be in effect to allow the addition of a new party, this new party being the legal entity which may bo described as Subbiah Gurukkal's estate. At the time the addition of this new legal entity was asked for the claim of the pltf. against that entity had been time barred. So the amendment should not be allowed. No doubt there is something to be said logically for this position. But so far as this Ct. is concerned the position for which Mr. Eamachandra Aiyar contended has never been countenanced. One of the earliest decisions of this Ct. is that reported in Swaminatha v. Muthayya, 15 Mad. 417 : (2 M. L. J. 119). In that case--leaving out immaterial facts--a suit was brought against the deft, in his capacity as trustee of a temple. Subsequently leave was granted to amend the plaint so as to convert the suit into one against the deft, in his personal capacity. And be it noted that this leave was granted at a time when a fresh suit against the deft, personally would have become barred. P. Seshagiri Rao v. T. V. Seshagiri Rao, A. I. R. (22) 1935 Mad. 160 : (154 I. C. 582) was a case in which following the case in Swaminatha v. Muthayya, 15 Mad. 417 : (2 M. L. J. 119) leave was granted to amend the plaint so as to make the guardian of a minor also per-sonally liable at a time when a separate suit against him in his personal capacity would have become barred. Mr. Ramachandra Aiyar referred to the decision in Sankara Menon v. Kuttani, A. I. R. (27) 1940 Mad. 639: (1940 M. W. N. 446), which was a case where leave to amend was refused. The learned Judge refused leave & observed as follows : "If we look at the essence of the amendment, it is a case in which by means of an amendment a very large number of fresh parties are added, though by a special procedure one of their number who happens already to be on the record in his personal capacity is treated as the representative of the whole association. IT seems to me that this is essentially a case of adding fresh parties after the period of limitation has expired." The present is not such a case ; it more properly falls within the scope of the decision in Swaminatha, v. Muthayya, 15 Mad. 417: (2 M. L. J. 119). IT is clear to me that if Parvathammal had been alive the amendment sought for could & would have been granted. Her death cannot increase or decrease the rights either of the pltf. or of Dandayuthapani, the adopted son as against the pltf. So far as Dandayuthapani is concerned, he would take the estate of his adoptive parents in the state in which it stood at the moment he became entitled to it. The order of the lower Ct., therefore, is set aside & leave to amend is granted, The petnr. can have this leave only on condition that he pays the resp. his costs of the pesn. in the Ct. below & here. The costs are to be paid before the amendment is carried out.;

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