HARENDRA NATH DE Vs. MONMOTHA NATH DE

JUDGEMENT

(1.) THIS application for amendment of the plaint arises under the following circumstances :

(2.) THE plaintiff's grand-father, ashutosh De died on October 21, 1938 leaving him surviving his widow and his youngest son Monmotho Nath De as his heirs, the plaintiff's uncle Raghunath and the plaintiff's father, Bholanath, having died earlier on September 16, 1930 and November 8, 1938 respectively. In 1937 Ashutosh distributed shares in public companies belonging to him among his son Monmotho and grandsons of his two pre - deceased sons. On September 9, 1937 Ashutosh De applied for letters of administration to the estate of raghunath and in that petition Ashutosh declared that he had distributed the shares in public companies belonging to him among his sons and grandsons. Ashutosh De left a Will dated april 9, 1907 the probate of which was issued by the Calcutta High Court in favour of his widow and Monmotho Nath de on February 19, 1943. On or about november 12, 1943 Suit No. 1530 of 1943 was filed by the said joint executors for partition and administration of the estate of Ashutosh De and for other reliefs. On July 10, 1944 a consent decree was passed in the said suit whereby the defendants in the said partition suit including Harendra, the present plaintiff, withdraw all the allegations made by them in their respective written statements and agreed to accept the shares as set out in the said decree. On February 17, 1950 there was an agreement between the plaintiff and his brothers in which some of the brothers of the plaintiff relinquished all their rights to any shares that may become recoverable from their uncle, monmotho. On September 19, 1950 a deed of partition between the plaintiff and his brothers also was executed. On March 21, 1956 the plaintiff's solicitors Messrs. R. K. De and Company wrote a letter to the defendant No. 1, stating that the latter had mot distributed among Harendra and his other nephews, several shares belonging to Ashutosh De which Harendra just discovered. On 20th December, 1956 the present suit was filed. Monmotho took out a summons to have the plaint rejected on the ground that the plaint did not disclose any cause of action. The application was heard and dismissed by Bachawat, J. , as he then was. The learned Judge, however, made an order that the plaintiff should furnish particulars of the new shares which Harendra discovered in or about march 1956 and also directed inspection of those documents. Another suit being suit No. 812 of 1957 was filed on 30th april 1957 by Harendra against monmotho and others whereby the plaintiff claimed share in respect of certain shares in a public limited company belonging to the estate of his father, bholanath De. On 26th August 1957 Harendra appealed against the order of Bachawat, j. , dated 3rd June 1957 but the said appeal was dismissed on 31st August 1960. Thereafter, an application for leave to appeal to the Supreme Court was filed on 22nd November 1960 against the said order but such leave was refused. On 22nd December 1960 the said suit no. 812 of 1957 was dismissed for non-prosecution. The appeal No. 52 of 1961 was filed against the said order of dismissal but the court of Appeal dismissed the same on 7th August 1962 where the learned Judges observed that any opportunity given to the plaintiff to prosecute his claim against Monmotho would be to permit an abuse of the process of the Court. Thereafter the plaintiff on 18th August 1966 took out the present summons for amendment of his plaint by adding several specific shares in public limited companies belonging to the estate of Ashutosh De, which, according to him, were discovered by him between 20th May 1964 and 6th October 1964 and which Monmotho being the senior-most member of the family fraudulently suppressed to deprive the plaintiff of his shares.

(3.) MR. T. P. Das has strenuously opposed the said amendment on, the following grounds : (a) The history of the litigation would show that the properties of Ashutosh de had been finally distributed. There were admissions by Ashutosh De himself that all his properties, moveable and immoveable, were duly distributed among his sons and grandsons. The plaintiff having accepted all the properties under the consent decree dated 10th July 1944 should not be allowed to pursue the matter any further. No particulars have been given as to the discovery of the new shares and, as such, the amendment is vexatious and speculative. The plaintiff, unlike all his other brothers, is the only person who is indulging in these litigations and any amendment sought for in the plaint of the present suit would only encourage multiplicity of proceedings and harass his client Monmotho. From all these facts he has asked me to hold that the plaintiff has moved this application mala fide. (b) The suit was filed in 1956 and the alleged new shares were discovered in 1964 and the plaintiff has taken out the present summons only in July 1966. There is nothing to show how these new shares were discovered by him in 1964. Accordingly, he has argued that this application should be dismissed on ground of delay also. (c) The plaint has already in prayers (g) and (h) asked for discovery of any additional property which might belong to the estate of Ashutosh De and, as such, the present amendment is unnecessary.