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2021 (6) TMI 553 - HC - Benami PropertyBenami transactions - declaration to declare the suit schedule properties as properties of the plaintiff - Firm/Company file a suit for partition on behalf of one of the partners to claim his share - plaintiff is claiming the rights by virtue of amending the pleadings - HELD THAT - The Court, ultimately is going to decide the right of the parties to the suit, in the 27 items of the suit schedule property even without amending and subsequent to the amendment also, the Court will decide the same. As long as when the Court is not going to decide the right against any of the properties not mentioned in the suit schedule, it would not amount to bringing a new case to change the character, nature and basic structure. In the present case, no such right is going to be decided against the properties which are not mentioned in the original suit schedule properties before the amendment. Therefore, the amendment of the pleadings is not going to change the character, nature and basic structure of the suit. Even this Court is of the view that the right claimed by the plaintiff in the suit is not proper. Subsequent to the amendment of pleadings only, it would be proper. Initially, one of the partners viz., P.Sivanantham claimed that he is entitled for 22.5% shares in the Firm and therefore the said share should come to the Company. This way of laying the claim is not proper. This Court is of the considered view that a Firm/Company cannot file a suit for partition on behalf of one of the partners to claim his share and thereafter to treat it as firm/company property. Firm/Company can file suit to determine its right in the properties but not the right of partner in the firm's/company's property. The partner's right in the firm/company will accrue only in the event of dissolution of the Firm or he will get dividend for his share in the Company in the event of dissolution of the Company. No such situation that arose in the present case. Thus, the suit was originally not filed in a proper manner. Now, by virtue of amendment, the plaintiff is not going to introduce any new plea, but by ignorance, the suit was filed and same has to be corrected legally. Further, without amendment, the right of the parties cannot be adjudicated in a proper manner and allowing this amendment will no way prejudice the right of any of the parties of the suit. Therefore, this Court feel that the amendment in the pleadings is necessary to adjudicate the rights of the parties. The amendment sought for in the relief is only for declaration to declare the suit schedule properties as properties of the plaintiff. This is the consequential relief. This Court does not find any irregularity in allowing this relief and with the amendment of pleading and the prayer, the Court can render complete justice to the parties. Accordingly, the amendment is necessary. When question of limitation was raised before the Court below, the Court below, instead of considering the limitation on merit, it has simply rejected the plea of the revision petitioners stating that the plea of limitation would be considered at the time of trial. As far as this finding is concerned, this Court does not find any error. Benami Transactions (Prohibition) Act, 1988 will not apply. As far as this finding is concerned, this Court is not agreeing with the finding of the Court below. In an amendment petition, the Court below cannot come to the conclusion whether Benami Transactions (Prohibition) Act, 1988 will apply or not without allowing the parties to let in evidence. Therefore, the finding of the Court below with respect to the claim of the plaintiff would not be affected in view of Section 4(9)(b)(2) of amended Benami Transactions (Prohibition) Act,1988 is set aside and the same can be decided by the trial Court by framing appropriate issue and decide the same in accordance with law after allowing the parties to let in evidence. Therefore, the finding of the Court below on the aspect of non- application of Benami Transactions (Prohibition) Act,1988, alone is set aside.
Issues Involved:
1. Amendment of the cause title. 2. Amendment of the pleadings. 3. Amendment of the prayer. 4. Application of Benami Transactions (Prohibition) Act, 1988. 5. Consideration of limitation at the time of amendment. Detailed Analysis: 1. Amendment of the Cause Title: The suit was initially filed in the name of "Narasu's Coffee Company" by P. Sivanantham, but the firm had been converted into "Sri Narasu's Coffee Company Limited" effective from 01.04.2009. The plaintiff sought to amend the cause title under Order I Rule 10 of the Civil Procedure Code, which allows for the substitution of the correct name if a suit has been instituted in the name of the wrong person due to a bona fide mistake. The court found that the firm was non-existent at the time of filing the suit in 2012, and thus, the mistake was bona fide and not intentional. Therefore, the amendment to change the cause title to "Sri Narasu's Coffee Company Limited" was allowed. 2. Amendment of the Pleadings: The plaintiff initially claimed a 22.5% right in the suit schedule properties but sought to amend the pleadings to claim 100% right following the validation of the Memorandum of Understanding (MoU) dated 10.08.2006 by higher courts. The court noted that the amendment did not introduce new properties or change the suit's basic structure but merely corrected the percentage of the claim. The court emphasized that the right of the plaintiff in the suit schedule properties would be decided based on evidence, and the amendment was necessary to adjudicate the rights properly. 3. Amendment of the Prayer: The original prayer in the suit was for partition and permanent injunction, but the plaintiff sought to amend it to include a declaration that the suit schedule properties belonged to the plaintiff. The court found this amendment to be a consequential relief following the validation of the MoU. It was deemed necessary to render complete justice and did not find any irregularity in allowing the amendment of the prayer. 4. Application of Benami Transactions (Prohibition) Act, 1988: The court below had held that the Benami Transactions (Prohibition) Act, 1988, would not apply. However, the High Court disagreed with this finding, stating that the applicability of the Act could not be determined without allowing the parties to present evidence. The court set aside the lower court's finding on this issue and directed that it be decided by the trial court after framing appropriate issues and allowing evidence. 5. Consideration of Limitation: The revision petitioners argued that the amendment was barred by limitation. The lower court had deferred the consideration of the limitation plea to the trial stage. The High Court found no error in this approach, agreeing that the plea of limitation should be considered during the trial. Conclusion: The High Court confirmed the lower court's order allowing the amendment of the cause title, pleadings, and prayer, finding no irregularity in these aspects. However, it set aside the lower court's finding regarding the non-application of the Benami Transactions (Prohibition) Act, 1988, and directed that this issue be decided during the trial. The Civil Revision Petition was partly allowed, with no costs, and the connected miscellaneous petition was closed.
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