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TMI Blog1971 (3) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... ld two of his malik-makbuza fields having an area of 11.33 acres by sale deed Ext. D-31 to his wife Smt. Mendra and to his nephew. Barshya, each of the vendees getting a half share in those fields. Later, Barshya re-conveyed his share to Bhiwa ion 20th July, 1921. With regard to the share sold to Smt. Mendra, disputes arose between her and Bhiwa. Bhiwa, consequently, filed a suit in the year 1941 for cancellation of the sale-deed Ext. D-31 and for a declaration that he was the owner of the entire fields. The suit was compromised and a decree was passed giving Smt. Mandra the right of ownership to 1/4th share in those two fields. According to the plaintiff-respondents this share of Smt. Mendri was gifted by her to the plaintiffrespondents by two gift deeds Exts. P-1 and P-2 dated 3rd October, 1948 and 28th October, 1948. The title to the property to the extent covered by these two gift deeds was claimed by the plaintiff-respondents on the basis of those deeds. In addition, a deed of gift. Ext. P-3 was executed by Bhiwa himself in favour of the plaintiff-respondents on 2nd May, 1951, and this covered the entire property in respect of which sale-deeds were later executed by Bhiwa in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the appellant. The appellant s cross-objection was allowed on the ground that Mendri had lost her right to the property before executing the gift-deeds in favour of the respondents on accou nt of her failure to file a suit for partition or possession within three years after the order of the Magistrate under S. 145 of the Code of Criminal Procedure. The respondent s appeal was dismisses affirming the findings of the trial Court, but on two additional grounds. One ground was that the gift-deed executed by Bhiwa in favour of the plaintiff-respondents was in fact ante-dated and bad beenexecuted after the 13th May, 1951, so that it was fraudulent and was intended to defeat the sale in favour of the appellant. The second ground was that the suit of the plaintiff-respondents was barred by the principle of res judicata in view of an inter-parties judgment in Civil Suit No. 42-A of 1952 which did :not exist during the pendency of the suit in the trial Court and was delivered while the appeal was pending in the appellate Court. Against this decree passed by the first appellate Court, second appeal was filed before the High Court of Bombay., The High Court held that both the lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had colluded with Bhiwa in seeking to set at naught the sale deed made by him in favour of the defendant which gave him a discharge of his liability and a release of estate from debt validly taken by him. Plaintiffs were, thus not entitled it succeed. In the pleadings contained in these two paragraphs, we are unable to find any indication that the appellant wanted to put forward the case that the gift deed executed by Bhiwa was antedated and that, in fact this gift deed was executed after 13th May, 1951 and subsequently to the sale deeds in favour of the appellant. The collusion alleged in para. 17 did not purport to have any relationship with the deed of gift. That collusion between the plaintiff-respondents and Bhiwa was alleged to have been for the purpose of setting at naught the sale deed in favour of the appellant. There is indication that even the parties an the trial Court did not understand these pleadings as containing a plea that the gift deed was antedated and fraudulent in the sense of having been executed to defeat and I delay the creditors of Bhiwa. No issue was framed on the question of fraud or antedating. Learned counsel for the appellant relied on issues 4, 12 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there was no justification for the trial Court to go into this question and record this finding when there were no pleadings in respect of it and, even during the course of trial, evidence was not led with the object of meeting such a plea. The first appellate Court committed a similar error in affirming this finding recorded by the trial Court. In fact, it proceeded to commt a greater error in going into the question whether the gift deed was antedating having been executed after 13th May, 1951. Stich a plea of antedating, it seems, was raised for the first time before the appellate Court in the course of arguments. There is nothing on the record to show that any such case was put forward at any earlier stage. The consequence is that the plaintiff-respondents. had no warning that such a case was being put forward and had no opportunity of tendering evidence to meet these objections. In respect of the plea of fraud, evidence could have been given that Bhiwa had other properties, so that no question of defrauding the creditors could arise. Both those courts also lost sight of the fact that, on the record, the appellant was shown to be the only creditor of Bhiwa; there were no othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s delay had occurred Me plea depended on questions of fact in respect of which. evidence could have been given and facts elicited. Such a plea could not be considered for the first time at the appellate stage when the party concerned had no earlier warning and did not have any opportunity to give evidence explaining the reason for the delay. The second circumstance for holding against the respondents appears to be based on a misunderstanding of the position of law. The register of the petition-writer was not a document maintained by or in the possession of the respondents. They were not responsible for its nonproduction. No presumption could be raised against them for failure of its production by the petition-writer. At best, the non-production could affect the value of the evidence of the petition-writer. Even if his evidence was not relied upon, no finding of antedating could be given when there was no assertion and no evidence on behalf of the appellant to show that the gift deed had been ante-dated and had been executed after 13th May, 1951. The finding recorded was clearly without any evidence altogether. The High Court was, therefore, quite correct in setting aside this findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exemption. The question was whether a particular notification had exempted one Bhagavathi Valli from the provisions of Part IV of the Ezhava Act. The Court held that this question was. properly gone into and expressed its views in the following words :- We do not think that the plaintiff in the case was taken by surprise. The notification must have been filed with the written statement, because there is no-thing to show that it was tendered subsequently after obtaining the orders of the court. The plaintiff was also cross-examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross examined on this point. The plaintiff did not seek the permission of the court to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District Judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli was exempted or not. The parties went to trial fully understanding the central fact whether the succession as laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med by the plaintiffrespondents in respect of some of the properties in suit. That plea becomes immaterial because, even if the gift deeds executed by Smt. Mendri are disregarded, the title to those properties was acquired by the respondents through the gift-deed Ext. P-3 executed by Bhiwa himself and the, earlier title claimed need not, therefore, be gone into. Lastly, counsel urged that now that the suit has been remanded to the trial Court for reconsidering the plea of res-judicata the appellant should have been given an opportunity to amend the written statement so as to include pleadings in respect of the fraudulent nature and antedating of the gift deed Ext. P-3. These questions having been decided by the High Court could not appropriately be made the subject-matter of a fresh trial. Further, as pointed out by the High Court, any suit on such pleas is already time-barred and it would be unfair to the plaintiffrespondents to allow these pleas to be raised by amendment of the written statement at this late stage. In the order, the, High Court has stated that the judgments and decrees and findings of both the lower courts were being set aside and the case was being remanded to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the decision of this Court in A. K. Gupta and Sons v. Damodar Valley Corporation ([1966] 1 S.C.R. 796) where the principle laid down was that : the general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred. But it is also we recognised that where the amendment does not constitute the addition of a new cause of action, or raises a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. In the case before us, this principle, instead of helping the appellant, goes against him. In this case, the pleas of fraud and ante-. dating in respect of, the gift deed Ext. P-3 raise entirely new causes of action and a case quite different from that pleaded in the original written statement. It is not a case of a different oradditional approach to facts already given in the written statement. These cases do not, therefore, help the appellant and would not justify our permitting amendment of the written statement at this late stag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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