P. Chandra Reddy, C.J.
1. This second appeal arises out of a suit instituted by the 1st respondent in the Court of the District Munsif of Masulipatam for dissolution of partnership, for accounts and other incidental reliefs. This appeal concerns a timber business of one Jaldu Venkata Subbarao of Masulipatam who executed a will on 20-6-1942. He died on 22-6-1942 leaving behind him his widow and considerable assets including the timber business in dispute.
By and under the terms of the will he made certain bequests in favour of his near relations and faithful servants. The decision of this appeal turns mainly on the relevant clauses of the testament. It is useful to set out the relevant clauses of the will-
'I have appointed three individuals mentioned herein as executors arid trustees of my estate after my death -- Thatiparti Nagapotharao, Jaldu Manikyalarao, Pulaparti Viswanadhani. It is provided that at my death all my estate shall vest in the three individuals mentioned herein who shall act according to the provisions mentioned in the wilt .......It is provided that from Chaitra Sudha Panchame of year Swablianu separate accounts shall be maintained and in the timber shop at Masulipatam 1/4th share wilt be allotted to Dintakurti Satyanarayanamurthy and he should improve business and continue it protecting my adopted son till lie becomes a major. Another 1/4th share will be set apart and if the executors are willing they would give it to the following persons -- Kantheti Narasimharao, Jaldu Bapannarao, Kantheti Satyanarayanamurthy.'
Immediately after his death the property of the testator became the subject-matter of litigation. The genuineness of the will was attacked by his widow as well as the 4th defendant in two separate suits, but it is not necessary to give the details. Ultimately, the validity of the will seems to have been upheld, but it is not necessary to advert to it at any length here. The plaintiff who is no other than the nephew of the testator being a son of one of the brothers instituted the present suit for the reliefs mentioned above as he was not given his due share of the income in the said business.
The three executors were impleaded as defendants 1 to 3. The adopted son was added as the 8th defendant who is the appellant before us. It is not necessary for us to refer to the array of the other parties.
2. By opening fresh accounts, and by acting otherwise, the executor implemented sonic of the terms of the will. On account of disputes amongst the executors inter se, the business seems to have been suspended some time later, but one of the legatees, namely, Dintakurti Satyanarayana who was impleaded as 6th defendant in the suit resumed the business some time in the year 1946. In such a situation, the plaintiff brought the present suit praying for dissolution of partnership business and for accounts.
3. The answer of defendants 1 and 2 i.e., two of the executors was that the gift to the plaintiff and the defendants 4 and 5 did not consist of any share of the corpus but only a share in the profits, that as the plaintiff and defendants 4 and 5 were not settled in life the testator had desired that ell information regarding the legacy in their favour should be withheld from them and that after the testator's death the executors agreed to give the plaintiff and defendants 4 and 5 a 1/4th share in the profits and fresh accounts were accordingly opened. But the executors deferred their payment of the share of profits for some reasons which need not be detailed here.
4. The 3rd defendant adopted a different attitude and said that the executors did not exercise the discretion vested in them under the will to give a 1/4th share to plaintiff and defendants 4 and 5. While the 4th defendant supported the plaintiff, the 5th defendant denied the genuineness of the will and repudiated any interest in the business of the testator. The other defendants fell in line with the 3rd defendant. The contesting defendants also raised a plea that the judgment in the suit filed by the 4th defendant earlier operated as res judicata against him. Various other issues were raised by the pleadings, but they will be dealt with in the proper context.
5. After the conclusion of the trial but before the judgment was delivered, the 5th defendant put in a petition for amendment of his written statement and issues by permitting him to ask for relief based on the terms of the will. This application was not allowed on the ground that it was very belated. The trial court passed a preliminary decree as follows:
1. The partnership shall stand dissolved as on 11-4-1946;
2. The plaintiff and the 4th defendant shall each be entitled to 1/12th share in the net profits of the timber business of the testator in Bandar;
3. The account books of the partnership shall be taken as the basis for ascertaining the profits.
4. The value of the stock-in-trade of the business on 11-4-1946 be ascertained and a 1/12th share therein shall be paid to each of the plaintiff and the 4th defendant.
The trial court declined to pass a decree in favour of the 5th defendant as in its view he disowned all interest in the business.
6. The 5th and 8th defendants who were aggrieved by this decree preferred appeals A.S. 26/1953 and 45/1952 respectively. The plaintiff who was also aggrieved with certain directions in the decree preferred the memo, of cross-objections. The lower court allowed the appeal of the 5th defendant but dismissed the appeal of the 8th defendant with costs and allowed the memo, of cross-objections. It is this judgment of the Subordinate Court that is brought under appeal. Its validity is impugned on various grounds.
7. At the outset, it is contended by the counsel for the appellants that the bequest in favour of plaintiff and defendants 4 and 5 being only a conditional one and the conditions imposed thereunder riot having been fulfilled the whole thing falls into the residue and so far as that share was concerned, there was intestacy. Alternatively, it is maintained that the testator had conferred only a power of appointment on the executors and this power not having been exercised no right has accrued to the plaintiff or defendants 4 and 5.
Though this problem was not raised in this precise form in the Courts below, we permitted the appellant to argue it as it is a pure question of law. We are not very much impressed with the first argument. There is no basis for the submission that the bequest in favour of plaintiff and defendants 4 and 5 was conditional one. The present bequest cannot be regarded as conditional devise as the requirements of such a bequest are not present in this case. In fact, the learned counsel for the appellant did not persist in describing it as conditional bequest; and, he fell back upon the alternative contention.
The argument advanced is that the language of the relevant clause, namely,
^^vanqyks 1@4 efj;ksd Hkkx Hkq ;sikZVqpsfl ,D>sD;qVyqZ b'Veq v';s ;sMy ykHkHkq f;P;qP;qaMs ykxqu ;sikZVqps;MeSaufn**
communicates the idea that the assigning of a share to these persons entirely depended on the will and pleasure of the executors and the non-exercise of their discretion has left these individuals without any remedy. In support of his contention the learned counsel for the appellant cited to us several rulings of English and Indian Courts.
8. The point for determination is whether the construction that is sought to be put on the material recitals, namely, that it is a mere power that is conferred upon the executors is correct or whether it is power coupled with interest.
9. Before we examine the various authorities, called in aid by the counsel on either side, we may mention that the right of a testator to grant a power of appointment to a person designated in the will authorising to regulate the final devolution of the estate at the termination of the interest previously created has been recognised by the Courts of this land and the Privy Council as far back as Bai Motivahoo v. Bai Mamoobai, 24 Ind App 93 (PC), thereby sanctioning a great extension of the testamentary powers. Legislative sanction was given to this by enacting explanation to Section 69 of the Indian Succession Act;
'Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property.'
10. Coming now to the rulings, we will first refer to Bull v. Vardy, (1791) 30 ER 338. There, the testator bequeathed to his wife several houses but did not give her any interest in the general produce of his state. The will inter alia recited:
'I further empower my wife to give away at her death 1,000/-; 100 of it to Elizabeth and 100 to Mrs. Bennet and the other 800 to be disposed of by her by will.'
The testator gave his two sisters his money in securities for their lives and said that his legatees were to take nothing till after the death of his wife and two sisters. He then distributed his property into small legacies and gave the residue to two young women named Crowe. The wife without making any disposition of the whole or a part of 1,000 aforementioned died.
Elizabeth Turner laid a bill against the executors of the widow of the testator claiming 100 which she had power to leave to the claimant. It was argued on behalf of the plaintiff that the 100 which the wife of the testator was empowered to give was sufficiently devised by the will and that words connoting recommendation, desire, request, etc., were in their nature compulsory and words of devise and when the testator empowered his wife to give to a certain object a certain sum there was a legacy.
This was negatived by L.C.B. Eyre in the view that the wife had no interest at all in the 100 and as such there was nothing to raise a trust and consequently the devise to her was only a naked authority. The ratio decidendi is contained in the following passage:
'The plain import of the words with the context seems to be this: He gives the residue to these women named. Crowe; but says his wife may dispose of 1,000/- if she pleases; if she does, she must give 100 to each of these women; the rest as she pleases. The word 'empower' in its most obvious sense is enough to create a charge. The party must execute the power to create a charge.'
It is true this case has stood the test of time and still holds the field, but does not render any assistance to the appellant as it applies to a set of different circumstances from those of the present. There, the wife was not given any interest in 1,000. She was given only a power to dispose of 1,000 forming part of the residue of the estate given to two women named Crowe. If the wife did not exercise that power during her lifetime it would belong to the residue of the legatee and so there was nothing to raise a trust. Further, out of 1,000/- a provision was made only for 200. Thus, it is a clear case where no trust was created in favour of either Elizabeth Turner or Mr. Bennett.
11. The case next cited for the appellant Is In re, Week's Settlement, 1897-1 Ch 289. In that case, the will of the testatrix that fell to be considered by the Courts conferred on her husband a life-interest in certain property. Then followed the clause:
'And I give to him power to dispose of all such property by will amongst our children in accordance with the power granted to him as regards the other property which I have under my marriage-settlement'.
There were children but the husband died intestate without having exercised the power of disposition. It was decided by Romer L. J. (Romer J., as ha then was) that what was conferred on the husband was a mere power and not one coupled with interest, which was bound to be exercised. Therefore, there was no gift to the children by implication. Romer J., began by saying that 'I should gather from the terms of the will that it was mere power conferred on the husband,'
The learned Judge also remarked that the authorities cited to him did not show that 'any hard and fast rule that a gift to A for life with power to A to appoint among a class and nothing more must, if there is no gift over in the will, be held to be a gift by implication to the class in default of the power being exercised.' He added that the indication should be found in the will that the testator or testatrix did intend that the class or some of the class to take--intended in fact that the power should be regarded in the nature of a trust -- only, a power of selection being given, as for example, a gift to A for life with a gift-over to such of a class as A shall appoint.
Thus, this is not an authority for the proposition that whenever a power of appointment is conferred that should he construed as a mere power and that no trust can be implied in favour of objects of that power.
12. In re. Combe; Combo v. Combe, 1925-1 Ch 210, which followed 1897-1 Ch 289 is of the same character. In that ease by his will one Harvey T. Brazazon Combe after appointing his wife and son to be executors and trustees, devised and bequeathed his residuary, real and personal estate, to trustees upon trust for conversion and to hold the net proceeds and the investments representing the same in trust to pay the income to his wife during widowhood and after her death or remarriage in trust for his only son for life and from and after his death 'in trust for such person or persons as my said son ...... shall by will appoint.'
The will proceeded 'but I direct that such appointment must be confined to any relation or relation of mine of the whole blood.' It was held by Tomlin J., that the will did not show any intention on the part of the testator to make a trust in favour of the objects of power and consequently 'if the son released his power of appointment, the property would go subject to the two life interests as on an intestacy.' The main consideration that weighed with the learned Judge in coming to that conclusion was that there was uncertainty as to class of persons for whose benefit he could create a trust which the son was under a duty to execute. The following passage gives the reason for the learned Judge's opinion:
'I have no difficulty in coming to the conclusion that there is in this will no indication adequate to enable me to conclude that a trust was intended to be created. The class said to be the beneficiaries hem differs wholly from the class which is the subject of the discussion in the cases that were cited. That was generally the testator's children, or, at any rate a quite definite and ascertained class, What this class is going to be, if it became necessary to ascertain it, I confess at the moment I am unable to say.
At any rate it does not seem to me to be such a class as justifies me in saying that the testator meant it to benefit in any event. I think it may very well be that the form of this will is deliberate and that he really meant his son to have a life interest and to be able to dispose of the property afterwards, provided that it was not left wholly out of the family, and that for the rest he was content to let it go as the law would make it go upon an intestacy. I see no reason on the words of this will for importing into it something which I am quite sure is not there.'
That case is therefore based upon the words of the will and upon the uncertainty and indefiniteness of the objects of power. Here also the learned Judge said that there was no inflexible rule in regard to such matters which means that the decision has to be reached on the dispositive words in the will.
13. Re, Eddowes, (1861) 62 ER 430, cited by the counsel for the appellant in his reply also belongs to the same category. What happened in that case was that a testator after having made a bequest of the residuary estate to his seven children revoked by a codicil the share given in the will to one of the sons and gave the same to his trustees by a trust at their uncontrolled discretion to apply the same or such parts thereof as they should think proper for the personal maintenance and support or otherwise for the benefit of the said son or otherwise to apply the same in augmentation of the shares of the testator's other children.
The trustees did not exercise the power but paid the share in question into court under the Trustee Relief Act. It was laid down by Vice Chancellor Sir R.T. Kindersley that there being no gift in favour of the person who would he benefited by the exercise of the power, no gift could be implied. Consequently, there was intestacy with respect to that share. This is an obvious case of a mere power and not one coupled with interest.
On the terms of the will, no gift could be implied. This does not therefore advance the case of the appellant in any way.
14. It was then argued by Sri Somasundaram with great insistence that the principle enunciated in Kumarasami v. Subbaraya, ILR 9 Mad 325, would govern the instant case on hand. There, a Hindu by his will after appointing certain persons as executors for the purpose of managing the estate gave them the following direction:
'You should give my brothers, their wives and children, according to your wishes.'
Justice Brandt and Justice Parker in reversing the judgment of Justice Kerman in regard to the effect of these words observed that the words expressed a wish only and not a command and that though the objects of the testator's benevolence were clearly mentioned there was uncertainty both as to the property and the way in which it should go. It was also remarked by both the learned Judges that the executors who were given the power of general direction did not exercise but renounced the only character in which it was competent to exercise it.
Since they have not chosen to act, the Court would not act unless the power is coupled with a trust. It is manifest that it is the uncertainty as to the property to be distributed amongst the persons intended to be benefited by the testator and the mode of distribution that induced the learned Judge to give that decision.
15. The other case called in aid by Sri Somasundaram does not come to the rescue of the appellant. In Mussoori Bank v. Albert Charles Raynor ILR 4 All 500 (PC), the testator made a gift in these words:
'I give to my dearly beloved wife the whole of my property both real and personal (described) feeling confident that she will act justly to our children in dividing the same when no longer required by her.'
The Privy Council in setting aside the judgment of the High Court of Allahabad held that under the will an absolute estate was given to the wife and no trust was created for the benefit of the children. It is seen that in that case no obligation was cast on the wife to leave any property to the children. It was a mere pious wish of the testator which was left to his wife to give effect or not. This does not lend any support to the theory propounded by the counsel for the appellant.
16. Bhaidas Shivdas v. Bai Ghulab, ILR 46 Bom 153: (AIR 1922 PC 193), also does not carry the appellant anywhere. That was a case where a Hindu under his will constituted his wife the owner of the property (malik) and provided that she should leave whatever property might remain after her death to two named daughters as she liked. On a construction of this clause, the Privy Council agreed with the view of the High Court that the widow took an absolute estate and there was no trust created in favour of the two daughters of the testator and the testator merely expressed a wish.
17. We will now examine the other line of cases. One of the earliest cases where the principle is stated in clear terms and it was relied on in almost all the rulings of the English Courts on the subject is Brown v. Higgs, (1799) 31 ER 366. In that case one Henry Brown bequeathed inter alia the leasehold interest of an estate for life to his nephew John Brown and the heirs-male of the body lawfully begotten and in default of such heirs to one of the sons of his nephew Samuel Brown as John Brown might direct by conveyance in his life or by his last will and testament.
He bequeathed to John Brown another leasehold interest upon trust subject to certain charges, to employ the remainder of the rent to such children of Samuel Brown as John Brown shall think most deserving and could make the best use of it or to the children of his nephew William Augustus Brown, if any. John Brown died without issue soon after the execution of the will his first mentioned nephew having predeceased him leaving a son and two daughters. The second nephew also died in the testator's life leaving some children. His widow who was given some legacies remarried Charles Higgs.
A suit was filed by the children of Samuel Brown against the testator's widow and the next of kin for establishing the will and for other reliefs. One of the questions that fell to be determined was whether the surplus rents after the charges created by the will were so given to such children of Samuel Brown as John Brown would think most deserving and that he would put it to the best use of it or to the children of William Augustus Brown was a gift to all the children or only to such of them as John Brown would select. If the intention of the testator as could be gathered from the will was the former, the death of the testator i.e., John Brown would make no difference.
But, if that was not the intention, the bequest would fail with the death of John Brown by reason of the selection not having been made. Sir Richard Arden M.R. construed the relevant clause of the will as giving to the children of Samuel Brown or William Augustus Brown with a power to John Brown to select any he thought fit and to exclude others, and that it could not be said that nothing was intended for them, exclusive of the appointment of John Brown. The learned Judge added:
'The fair construction is that at all events the testator meant it to give to the children and these words of appointment he used only to give a power to John Brown to select some and exclude the others.'
The decree which was originally pronounced on Rolls was affirmed on rehearing. This was confirmed by the Court of Appeal, the judgment having been delivered by Lord Chancellor Eldon in Brown v. Higgs, (1801) 32 ER 473. The rule governing these cases is expressed by the Lord Chancellor in these words:
'It is perfectly clear that where there is a mere power of disposing and that power is excluded this Court cannot execute it. It is equally clear that whenever a trust is created and the execution of that trust fails by the death of the trustee or by accident this Court will execute the trust.'
The matter was taken up in further appeal to the House of Lords in Brown v. Higgs. (1801) 34 ER 290 without success.
18. The earlier case on the point is Cower v. Mainwaring, (1750) 26 ER 57. It contains the same principle as in (1799) 31 ER 366. The principle of Brown v. Higgs (supra) was affirmed by Chittey J. in Wilson v. Duguid, (1883) 24 Ch D 244. There, the relevant clause in the will as could be extracted from the Special Case in the report is as follows :
'.......and from and after the decease of the survivor of them, the said William Duguid and Sarah his wife upon trust to assign the said premises upto and amongst such of the children of the said William Duguid and Sarah his wife then living, in such manner, shares, times, proportions as the said William Duguid and Sarah his wife jointly or the survivor of them separately, should by any writing appoint, and in case there should be no such child or children, then upon trust for the said Robert Keeling the younger for life, and after his decease upon trust to assign the said premises unto and amongst such of his children, and in such manner, shares, times and proportion as he should by any writing appoint.'
The question was whether all the children of Robert Keeling could take, whether all his children or those only who were living at his death in 1863 or those that were living at the death of Sara Duguid 13 years later or those living at the death of William Duguid subsequently. The answer of the learned Judge was that there was a trust for all the children of Robert in equal shares subject to a power of selection and distribution exercisable by him either by a deed inter vivos or a will. The learned Judge observed that if it was necessary to resort to technical reasoning, he would hold having regard to the words in which the will was formulated that there was a plain implication of trust.
19. Burrongh v. Philox, (1840) 41 ER 299 is in consonance with the doctrine of (1799) 31 ER 366. Lord Cottonham after discussing some of the leading cases said that
'when the general intention appeared in favour of a class or a particular intention in favour of a class to be selected by another person and the particular intention fails by reason of the selection not being made the Court will carry into effect the general intention in favour of the class.'
Izod v. Izod (1863) 55 ER 95 is another case which applied the rule adumbrated in (1799) 31 ER 366.
20. The principle that could be gathered from the various authorities is that if the will gives an indication that the testator or testatrix intended to to create a gift in favour of the objects of benevolence and the power conferred upon the appointee is only one of selection it will he regarded as in the nature of a trust. This intention must be sufficiently apparent on the will. If there is no gift over or express disposition in default of the exercise of that power a gift may be implied to the class equally in default of appointment or 'the appointment is construed in the manner the appointee would select.'
But the absence of a gift-over does not necessarily disclose that a trust was created. It is not an absolute rule of law but only one of construction and is only an aid in gathering the intention of the testator. Where a power of selection is in the nature of a trust cast on the donee of that power if the selection is not made, the members of the class take equally. The Court will not permit the objects of the power to suffer by negligence or conduct of the donee of power but would put into effect the intentions of the testator and thus fasten on the property a trust for their benefit.
In such a situation, the Court will not permit the intention of the testator to be defeated by the donee of power not executing it. IP there is uncertainty as to the objects or subject of bounty or to the mode of distribution of the property if may be regarded as a naked power. If it is a mere power it lapses if it is not executed.
Where the intention of the testator to benefit a person is reasonably clear and the subject-matter of the gift is also mentioned, the power given to an appointee will be in the nature of a trust so, that the non-exercise of it will not defeat the gift. The passages in 'Jarman on Wills' pages 660 to 662 (8th edition) which contain the correct legal principles on the topic bear out the views expressed by us above.
21. We will now proceed to ascertain the intentions of the testator in this respect bearing in mind the rules stated above. In the consideration of this question, it may not be out of place to take into account the surrounding circumstances. We have to gather the intention of the settlor by reading the instrument as a whole and in the context of the attendant circumstances. The group of persons who are intended to be benefited by the material clause were in impecunious circumstances and were running into debts.
It could be seen from the draft of the will prepared two days earlier that the testator was anxious to give them the bequest in such a manner as to put it beyond the reach of the creditors. So, this would throw light on the unquestionable intention of the testator to make a gift to this class of persons. It cannot also be ignored that these three persons were closely related to him and the testator was anxious to make provision for every one oft his relatives, even remote ones and his faithful servants. Another significant circumstance is the absence of a gift-over.
Para 16 of the will shows that the legacies mentioned earlier were excluded and it was only the rest that was given to the residuary legatee. If really he had in mind the eventuality of the legacies failing, he would have directed this also to fall into the residue in default of its taking effect which means he was certain that the gift would not lapse, so, we think that the power of selection given was only in regard to the time of vesting.
It has to be noted that the testator himself has set aside a 1/4th share and then said that if the executors desire they will go on giving that share to the three individuals mentioned therein. It is the use of the words ^^Hkkxeqyq f;PpqPpqMs ykxqu** meaning ''will go on giving a share' that has induced the Courts below to hold that the testator himself made the bequest of the corpus but left discretion to the executors as regards profits therefrom.
We do not see any basis for this distinction between the corpus and the profits as there are no words to indicate that the testator himself had in mind such a distinction. We are alive to the fact that the bequest to these legatees is not expressed in so many words but we have to collect the intention of the testator not only from the words used but also from various other considerations. In this context, the remarks of the Privy Council in Narasimha Apparow v. Parthasaradhi Apparow, ILR 37 Mad 199 (PC) are quite pertinent:
'In all cases the primary duty of a Court is to ascertain from the language of the testator what were his intentions, i.e., to construe the will. It is true that in. so doing they are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use word in a particular sense, and many other things which are often summed up in the somewhat picturesque figure 'The Court is entitled to put itself into the testator's armchair.'
Having regard to the several factors indicated above, we feel that the only reasonable inference to be drawn is that discretion was given to the executors to choose the time of vesting and not unfettered discretion either to confer benefit on the class or deprive them altogether of any benevolence.
22. Even assuming that the interpretation sought to be put on the will by the appellant were correct, we think it does not make any practical difference. In this case, the power was executed by two of the executors i.e., defendants 1 and 2, the third one refusing to join in the exercise of it. The question is whether that is a valid exercise of the power. It is urged by Sri Somasundaram that the power being a joint one it is not competent to two of them alone to execute it and that it shall be done by all the three and no legal consequences will spring from two of them alone acting in that behalf.
Support is sought for this proposition from ILR 37 Mad 199 (PC). In that case, the subject-matter of litigation concerned the zamindary of Nidadavol and Medur. The primary question for decision in that case was whether the power of adoption conferred by the then zamindar on his two wives under his last will and testament could be exercised by only one of the two. The Privy Council decided that as the testator gave a power to his two wives as personae designates it could not be executed by one of them alone, that the exercise of the power vested in the joint donee and the death of one of the donees of power put an end to the joint power.
Having regard to the fact that notwithstanding that he could authorise one of the two widows to make the adoption he chose to vest the authority in the discretion of both the wives, their Lordships thought that it was the intention of the testa for that it should be exercised by both of them jointly. The decision rested on the ascertainment of the intentions of the testator from the language of the will.
23. That this dictum is not applicable to an ordinary joint power is plain from the following sentence in the judgment of their Lordships:
'The case is different where the power is vested not in personae designatae but in the occupants for the time being of a specified office such as executors or trustees, but that is not the case which we have to consider here.'
Surely, it cannot be disputed that this power of appointment was given to the three individuals mentioned above because they were holding office of: executors and not in their individual capacity.
24. The rule enacted in Section 311 of the Indian Succession Act places the matter beyond controversy. Section 311 provides:
'When there are several executors or administrators, the powers of all may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the will or taken out administration.'
If any authority is needed for the proposition enunciated above, reference may be made to Alamuru Sitaramaswamy v. Venkata Raghavacharyulu, 16 Mad LW 52: (AIR 1922 Mad 214) which laid down that such power could be exorcised by two out of the three executors appointed under a will. There can be no scope for the argument that the power in the instant case does not fall within the ambit of the section. The submission of the appellant in this behalf cannot therefore succeed. In our view, the exercise of the power by only two out of three executors is a valid one.
25. It was alternatively contended that in thecircumstances of the case it cannot be predicatedthat defendants 1 and 2 executed the power forthe following reasons:
26. In the written statement it was pleaded that these two executors chose to give effect to the intentions of the testator by agreeing to give a share to the three individuals in the profits soon after the death of the testator, but that the legatees had no interest in the corpus. The earlier part of the statement is in conflict with the attitude they assumed in the suit filed by the present 4th defendant for a declaration (O.S. 38 of 1943, District Court, Krishna/O.S. 53/1914 Sub Court, Bandar) in which it was stated that the executors were not prepared to exercise the power conferred on them.
Further, the Courts below found that the story of defendants 1 and 2 that they executed the power prior to the institution of the suit was unacceptable and that they had not done it prior to the filing of the suit. That being the case, it could not he said that there was in fact an exercise of the power by the executors, argued the learned counsel.
27. We are unable to give weight to this argument. It is no doubt true that the position taken up by them in the suit filed by the fourth defendant is not in consonance with their having executed that power immediately after the death of the testator. But their written statements in this suit in clear terms brings out their willingness to exercise that power.
Their previous attitude would not preclude them from doing what was expected of them by the testator. The present written statement can reasonably be construed as expressing their inclination to give effect to the wishes of the testator. The pleas that the legacy in question was only in regard to the profits also does not present any insurmountable difficulty. That is how the executors understood the bequest.
It implies a decision on their part to give this group of beneficiaries what in their opinion was the subject-matter of that gift. That does not communicate the idea that they wanted to split it into two parts, exercise discretion with regard to one and refuse it with regard to the other. If ultimately the Court comes to the conclusion that the bequest comprised of the corpus as well as the profits accruing therefrom in the 1/4th share of the business, the exercisable power would attach to the corpus as well.
In our judgment this is the only reasonable way of interpreting it. So, even on this assumption the plaintiff and others are entitled to the share allotted to them under the will of the testator.
28. This leads us to the question as to the period for which the plaintiff and the 4th defendant could claim the profits. It is contended for the appellants that the right of the plaintiff and the 4th defendant to receive the profits should be restricted to a period subsequent to the exercise of the power by the executors or from the date of the plaint when the Court would be deemed to have executed that power as such right flows only from either of the two acts.
The profits accruing before that date would fall into the residue, continued Sri Somasundaram. On the other hand the learned Advocate-General tries to sustain the judgment of the trial Court on the argument that all the profits accruing before the date of vesting also go along with the corpus since the contingency contemplated by the testator had happened. He submitted that where there is a contingent legacy or a bequest but the testator directed the subject-matter to be set apart and when the contingency happens the property with its accretions would belong to the legatee.
29. In support of this theory, he placed before us some decisions of English Courts, one of which is Re: Medlock; Ruffle v. Medlock (1886) 54 LT 828. In that case the testator bequested to his trustees a sum of 750 to pay and divide the same equally between such of his three grand children naming them as should be living at his death and should then have attained the age of twenty one years or have married, or should thereafter attain that age, or marry.
It was further provided in the will that in default of any such person attaining a vested interest the 750 Pounds and the investments representing the same should fall into his residuary personal estate. The ratio underlying the judgment of Justice Kay was put thus:
'Therefore it seems to me upon principle that if it is clear upon the testator's will that he has directed the contingent legacy to be immediately set apart for the benefit of the objects of the gift when the contingency which he has indicated, happens, when that contingency does happen the fund set apart with all its accretions belongs to this contingent legatees. The question is whether in this case I find such a segregation.'
To the same effect is the judgment of Chitty, J. in Clements v. Pears all 1894-1 Ch. 665 which followed (1886) 54 LT 828. The judgment of the Court of Appeal in Woodin v. Glass, 1895-2 Ch, 309 contains an elaborate discussion on the topic. Lord Lindley reviewed all the earlier cases and re-affirmed the principles laid down in (1886) 54 LT 828 (supra) and 1894-1 Ch. 665 (supra).
The effect of these decisions is, that if a contigent legacy is segregated and set aside from the general estate of the testator the income would not tall into the residue but goes with the legacy. But, if the subject matter of the gift is not directed to be set apart from the rest of the estate it would not carry the intermediate income, This is how the the proposition is stated in 'Theobald on the Law of Wills' at p. 166 (11th edition):
'Before 1926 a contingent specific bequest of chattels real or pure personalty, did not carry the intermediate profits, unless the subject-matter of the gift was directed to be set apart from the rest of the testator's estate. The severance had to take place by virtue of directions given by the testator with reference to the subject-matter of the gift. If the subject-matter of the gift was set aside by the executors, merely because the rest of the estate had become distributable, the gift did not carry the intermediate income.'
We feel that the dictum laid down in these cases would not apply to wills in our country as there is a specific provision in the Indian Succession Act enacted in Section 349 to cover such cases and it is in these words :
'The legatee of a specific legacy is entitled to the clear produce thereof, if any from the testator's death.
Exception: A specific bequest contingent in its terms, does not comprise the produce of the legacy between the death of the testator and the vesting of the legacy. The clear produce of it forms part of the residue of the testator's estate.'
The illustration have also to be extracted as they are very helpful in interpreting the section:
'(i) A bequeaths his flock of sheep to B. Between the death of A and delivery by his executor the sheep arc shorn or some of the ewes produce lambs. The wool and lambs are the property of B.
(ii) A bequeaths his Government securities to B, but postpones the delivery of them till the death of C. The interest which falls due between the-death of A and the death of C belongs to B, and must, unless he is a minor, be paid to him as it is received.
(iii) The testator bequeaths all his four percent Government promissory notes to A when he shall complete the age of 18. A, if he completes that age, is entitled to receive the notes, but the interest which accrues in respect of them between the testator's death and A's completing 18, forms part of the residue.'
It is argued by the learned Advocate-General that the exception to Section 349 embodies the principle enunciated in the English decisions noticed above. That being so, the exception should be interpreted in the light of those, rulings. We arc unable to accede to this contention. The exception in clear and unambiguous language says that a specific contingent bequest would not comprise the produce between the two dates while the main section lays down that a specific bequest which is vested but in regard to which the enjoyment is postponed would carry the interim income from the time of the testator's death.
It looks to us that the rule embodied in this section is a departure from the propositions enunciated in the authorities relied on by the learned Advocate-General. Therefore, if it is the exception to that section which applies to this case the legatees would not be entitled to the income between the two material dates. However, in our Opinion, the appropriate provision in this context is not the exception but the main section itself. We feel that this is a specific bequest which is vested in interest but the vesting is postponed to a time dependent upon the discretion of the executors.'
The case, therefore, resembles one which iscontemplated by illustration 2. While in thatillustration the enjoyment is postponed till the happening of a particular event, in the instant case the vesting is postponed till such time as the executors choose. In this view, we hold that the plaintiff and the 4th defendant could claim their due share of profits.
30. We will now dispose of another point that was argued by Sri Somasundaram, namely, that the legatees under the will are merely co-owners and do not occupy the position of partners. It is maintained that the essence of partnership is an agreement between the parties to share the profits and in the case of legatees or donees that element being absent they could not constitute a partnership.
To substantiate this, our attention is invited to the definition. of partnership in Section 4 of the Indian Partnership Act as also to some passages in Mulla's Indian Partnership Act (2nd edition). The ingredients of partnership are set out at p. 302, Mulla's Indian Partnership Act (2nd edition) as follows;
'(1) There must be an agreement entered into by all the persons concerned;
(2) The agreement must be to share the profits of a business; and
(3) the business must be carried on by all or any of the persons concerned, acting for all.'
At p. 305 the distinction between co-owners and partnership is pointed out thus;
'There is not partnership without combination to carry on a business, and therefore the mere fact that persons own in common something which produces returns and divide those returns according to their respective interests, does not make them partners. 'Persons who have no mutual rights and obligations do not constitute an association because they happen to have a common interest or several interests in something which is to be divided between them'' etc. This point is devoid of any substance. There can be no quarrel with the proposition that a co-ownership is not the same thing as partnership. The mere fact that the legatees or donees under a will or a deed inter vivos as the case may be, or heirs at law happen to have common interest in some thing which is divisible amongst them would not make them partners. But, if such persons continue the business either after the death of the testator or when the inheritance falls as the case may be it could not be postulated that there was no partnership.
They are not precluded from carrying on such a business. When the business is continued, there is an implied agreement amongst the various individuals having a common interest in the business. Such a principle is beyond dispute. This is the effect of Satferaju v. Pallaniraju, ILR 41 Mad 939: (AIR 1919 Mad 950). That aside, we fail to see what difference it makes for the purpose of this case.
Even if the parties are in the position of co-owners they cannot be denied their share of the profits or the income derived from the business. When this was pointed out to the counsel for the appellants, he conceded that it was so and the position of his client is not in any way affected even if the legatees in question are regarded as co-owners.
31. There remains the question whether the 4th defendant is barred by the doctrine of res judicata under Section 11 of the Code of Civil Procedure. What is argued for the appellants is that the judgment in O.S. 38/43 secured by the 4th defendant operates as res judicata against him by the principle of 'might and ought' in Explanation 4 to Section 11 Civil Procedure Code, which says;
'Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.'
It is submitted that it was open to the 4th defendant in the prior litigation to advance the claim; founded on the will and he not having done so is precluded from agitating that matter in the present suit. O.S. 38/1943 was filed by the 4th defendant for a declaration that the will put forward by the executors and the 6th defendant was not a genuine one. It was averred in that suit that he entered into an agreement with Jaldu Venkata Subbarao the alleged testator by and under which he became a partner with a two annas share.
The right of the plaintiff therein (4th defendant in the present suit) was questioned by the defendants in that suit inter alia on the grounds that he could not assail the genuineness of the will, for the reason that he was not interested in the estate of late Venkata Subbarao and that even otherwise his rights, if any, could not he affected by the will. It is in that context that two additional issues were framed:
'5. Whether plaintiff has got a share in Musulipatam Timber Depot of Late J. V. Subbarao.
6. Whether the suit is not maintainable for reasons stated in paras 2 to 5 of 1st defendant's written statement?'
Issue No. 5 was found against plaintiff. In view of that finding, it was decided that the plaintiff was not entitled to any relief in the suit and in the result, the suit was dismissed.
32. The contention pressed upon us by Sri. Somasundaram is that an issue relating to a share of the 4th defendant was raised in that suit and that issue having been decided; against him that is conclusive against him. The 4th defendant was not prevented from resting his claim to a share on the alternative basis also i. e., under the will. Since he had not urged the alternative ground in that suit he is debarred from doing it in the present suit by force of Explanation 4 to S. 11 Civil Procedure Code.
33. In support of this theory, a reliance is placed on Sree Muthoo Raghunadha Periyaoodya Taver v. Katama Nachiar, 11 Moo Ind App 50 (PC). In that case, there was an earlier suit instituted in 1832 for the recovery of the zamihdari of Shiva Ganga and there was an issue relating to the validity of a testamentary paper, but finally the party who claimed under that testamentary disposition rested his case on the assumption of the zamindar being undivided and abandoned his claim under the alleged will.
A decision was given against him on the ground that the zamindari was a self-acquired one and therefore the question of division or no division was immaterial. Thereupon, a fresh suit was instituted for the purpose of establishing the will. It was held by the Privy Council that the decision in the prior suit was final so far as it concerned that will as its validity was properly at issue in prior litigation and that was abandoned.
We cannot derive any assistance from that case. There, an issue touching upon the validity of the will was specifically raised, but it was abandoned. Further, the plaintiff could have founded his claim upon the will alternatively in the prior suit. It was in such a situation that their Lordships applied the principle of res judicata.
34. Doorga Pershad Singh v. Doorga Konwari, ILR 4 Cal 190 (PCJ is also another instance of the same principle. There a suit filed by a Hindu widow governed by the Mitakshara as the heiress of her deceased son was decreed. One of the parties to that Suit brought a fresh suit alleging a family custom which excluded female heirs and gave him a preferential right among the male heirs. It was held that plea was not open to him in the second suit by virtue of the doctrine of res judicata.
The reason of the rule there is that he could have set up this defence and if proved would have negatived the claim of the plaintiff in the earlier suit on that objection. Masilamania Pillai v. Thiruvengadam Pilla, ILR 31 Mad 385 and Fateh Singh v. Jagannath Baksh Singh, ILR 47 All 158: (AIR 1925 PC 55) also illustrate the same proposition.
35. We do not think these cases have much of a bearing on the present enquiry. In our judgment, there is no scope for extending the doctrine of res judicata to this case. The subject-matter of the two suits as also the capacities in which they were brought are altogether different. The object of the first suit was to obtain a declaration that the will was forged one whereas in the present one the purpose is to get legacy given under the will. Therefore, the area and scope of the previous litigation are different from those of the present one.
It is true in O.S. 38/1943 issue 5 bore on the right of the then plaintiff to a share in the partnership. But it should be remembered that that issue was founded upon a pleading that the suit was not maintainable since he had no interest in the estate that was the subject of the will of late Venkatasubbarao. That issue therefore became germane to the decision of the question as to the status of the plaintiff to maintain the suit. That this is so clearly appears from the judgment in that suit. In discussing the maintainability of the suit this is what the Subordinate Judge says:
'In para 11 of the plaint, the only ground given by the plaintiff as cause of action to file this suit is that he has got an interest in the Masulipatam Timber Depot of Jaldu Venkata Subbarao. Since I have found that he has no sort of interest in the suit depot, the very foundation of the plaintiff's case is knocked out and he has therefore no locus standi to maintain this suit.'
Thus, it is manifest that issue 5 referred to above was considered only as having a bearing on the right of the plaintiff to impugn the genuineness of the will. That being the case, it could not be said that the issues now arising in this case should be deemed to have been directly and substantially in issue in the earlier suit. It cannot also be ignored that the first suit was instituted by the 4th defendant in the capacity of one who had entered into partnership with Venkata Subbarao during his life-time while in the present the claim is as a legatee under the will of the said Venkata Subbarao.
The cause of action also cannot be said to be the same to attract the applicability of the principle underlying Section 11. It is necessary that the cause of action on which both the suits are based should be the same. In ILR 31 Mad 385 relied on by the appellant, it is said:
The real test, therefore, is whether the cause of action, or transaction on which the two suits are based, is the same, and not whether the transaction is sought to be established in different modes or by different means.'
Applying this criterion, it must be held that the bar of res judicata cannot come into operation in this case. This is not a case where the same transaction is sought to be established in two different modes, as in the cases cited for the appellants.
36. The fallowing decisions are nearer to the present case. In Thandavan v. Valliamma, ILR 15 Mad 336 the object of the previous suit was to get a declaration that the will was a forgery, but the property was not then sued for. The same party was held not to be precluded by the decree in the former suit declaring the genuineness of the will from impugning the validity of the will in a subsequent suit since in the former suit the property was not sued for.
In Dhanapalu Chetti v. Anantha Chetti, 24 Mad LJ 418 a suit was instituted for a declaration that the properties disposed of by a testator were the undivided family properties of themselves and the testator. The suit was dismissed on the ground that the testator was divided by the time of his death. It was held that this was not a bar to a second suit as reversioner on the footing that the will gave only a widow's estate to the legatees. The doctrine of T. K. Ummatha v. T. K. Cheria Kunhamed, ILR 4 Mad 308 also accords with this.
37. In the present case the 4th defendant could not have made any claim on the strength of the will as it would have been incongruous having regard to the nature of the suit there. It would have introduced an utterly inconsistent claim in that suit. For these reasons, we hold that the adjudication in the previous suit docs not stand in the way of the 4th defendant recovering his share of the legacy under the will. We, therefore, reject this contention also.
38. There remains the appeal relating to the 5th defendant. The judgment of the lower Court is attacked by the appellant as being an unsound: one. The complaint of the appellant in this behalf is that the lower appellate Court ought not to have permitted the appellant to invoke Order 6 Rule 17 C. P. C. having regard to the late stage at which the request was made in the trial court and also the circumstances in which the amendment was sought.
39. The arguments adduced for the appellant in this behalf are substantial and deserve much weight. The narration of facts reveals that in the original written statement the 5th defendant not only called in question the genuineness of the will but wanted also the suit to be dismissed against him alleging that he was not a necessary party. Thus, far from not putting forward any rights in the partnership by and under the will it was specifically stated that he never functioned as a partner. Having regard to this written statement the material issues were framed thus:
'(1) Whether the plaintiff and the 4th defendant had any share in the suit timber business according to the will relied on in the plaint?
(2) Whether the 5th defendant was a necessary party to the suit?'
The trial proceeded on the basis of these issues and concluded on 15-9-1952. Two days after that, i.e., six years two months after the original written statement was put in, the 5th defendant sought an amendment of the written statement. We may extract in extenso the affidavit filed in support of the petition to the extent it contains the reasons given by this defendant in view of the importance of the context:
'I was not personally aware of the execution of the will and I was not informed by the executors about their having given a four-anna share to me, plaintiff and 4th defendant. I pleaded in my written statement that I was not aware of the fact of such a share having been given to us and consequently that I was not a necessary party. I never disclaimed any such share if there was any such. The averment that the suit might be dismissed was made only in the routine manner.
Even the plaint averments make it clear that it was a consolidated share of 4 annas that was directed to be given jointly to plaintiff, 4th defendant and myself. Therefore, even according to the plaint either all of us get the share or do not. Issue No. 1 ought to have been therefore framed so as to say whether the plaintiff, 4th defendant and 5th defendant are entitled to a share in the suit business and not confined to plaintiff and 4th defendant alone. Issue No. III is also unnecessary, I therefore submit that the issue had to be recast accordingly.
'4. By subsequent events it has transpired that the truth and binding nature of the will of late Jaldu Venkata Subba Rao Garu which was in dispute for a long time was finally admitted by all the concerned patties. It also now transpires from the evidence of the executors that they have in fact given a four-anna share jointly to plaintiff, 4th defendant and myself.'
The trial Court rejected this application but that order is not before us. We do not get any inkling in the judgment as to the reasons for the dismissal. All that is stated there is that since the 5th defendant filed a written statement supporting the 3rd defendant and disclaiming any interest in it he could not have any share in it. The reasons given by the Subordinate Judge for allowing the appeal filed by the 5th defendant are these:--
'The object of the contentions of the 5th defendant was to deny the existence of the will dated 20-6-1942. He merely pleaded that he was not aware of the fact that plaintiff 4th defendant and himself were given a share and at the time when he filed the written statement he supported the stand of the 3rd defendant who was antagonistic to the other two executors.
The observations of the learned District Munsif in para 23 of the judgment that the 5th defendant disclaimed his interest in the business are incorrect inasmuch as the learned District Munsif did not refer in that paragraph to the application filed by the 5th defendant to have his written statement amended. If the plaintiff and the 4th defendant are to get a share in the timber business it is not as if the 5th defendant is foregoing his own proportionate share in that business.'
It is plain that the learned Subordinate Judge did not approach the question from the right stand point. His criticism regarding the observations of the Munsif in para 23 does not stand any scrutiny. The mere fact that an application for amendment of the written statement was filed by the 5th defendant did not detract from what was stated in the original written statement. He did not consider whether any grounds existed for accepting an application for amendment of the written statement. Evidently what influenced the learned Judge was that since the plaintiff, the 4th defendant and the 5th defendant were together given a 1/4 share there was no reason why the 5th defendant should be deprived of his quota in that 1/4th share. We think that was not a decisive test. The learned Subordinate Judge had not applied his mind to the real question whether an amendment of the written statement was warranted by the circumstances of this case.
If only the learned Judge had given any thought to this aspect of the matter, he would have arrived at a contrary decision. It has to be noted that the allegation in paragraph 3 that this defendant is not aware of the execution of the will is not a true one. Along with the plaint the copy of the will in dispute was marked as Ex. A-1 and therefore the knowledge of contents must be attributed to him.
That apart, a specific reference is made in the written statement to that will. There is also no substance in the complaint that issue No. 1 as it stood ought not to have been framed and issue No. 3 was also unnecessary. These issues were formulated on the pleadings including the written statement of the defendant. One fails to understand how a grievance could be made of any of these issues when the defendant himself said that he was not a necessary party, that he did not claim any interest in the business and that the suit should be dismissed with his costs.
There can be little doubt that the application for amendment was lacking in bona fides. We understand that the 5th defendant approached the Court with the prayer for amendment two days after the trial ended having regard to the views expressed by the trial Court regarding the tenability of the contentions of the contesting defendants.
40. It is true that as a general rule amendment of pleadings should be liberally granted to enable the real question between the parties decided except when it occasions any injury to the opposite party. All the rules of procedure are devised only in the interests of proper administration of justice and they should be made to serve that end. Therefore, the powers conferred on a Court by Order 6 Rule 17, C.P.C. should be liberally exercised.
But an amendment claiming reliefs absolutely inconsistent with those in the original written statement would not come within the purview of Order 6 Rule 17, C.P.C. The exercise of the power given under Order 6 Rule 17, C.P.C., is subject to the same qualifications as stated by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, ILR 48 Cal 832: (AIR 1922 PC 249):--
'......... but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment the subject-matter of the suits.'
41. In the instant case, the amended writtenstatement wholly displaces the original one anddestroys all that was stated and claimed therein.The reliefs claimed in the amended written statement are in contravention of the original prayerfor the dismissal of the suit with his costs. TheCourts normally should not allow the party to raise,an amendment which is in direct negation of whatis stated or contained in. the original statement. SeeSheik Masthan Sahib v. P Balarami Reddy, : AIR1953Mad958 .
42. Another consideration that should enter the decision of the point arising under Order 6 Rule 17 is the stage at which it should be permitted to be raised. Unless there are good and proper reasons an amendment of plaint or written statement should not be allowed after the case is closed. In Vedachala Chettiar v. Ameena Bi Ammal, AIR 1944 Mad 121 (F. B.), when the plaintiff's evidence was about to be concluded, one of the defendants sought leave of the Court for amendment of one of the issues by inserting some words, and that defendant succeeded in inducing the trial Court to make that amendment.
But, while giving the judgment, the Court did not give effect to the amendment but proceeded on the basis of the original written statement. In dealing with that matter, this is what Chief Justice Leach who spoke for the court remarked:--
'It is regrettable that the amendment of the issues should have been allowed ...... It was far too late at the close of the plaintiffs case to allow defendant 4 to set up a new case. The application has been renewed in this Court, but we see no reason to differ from the District Munsif. It would mean the remanding of the case for the taking of further evidence and the plea was raised too late in the trial Court.'
The present is an a fortiori case, and it would not be proper to allow the defendant to introduce the amendment sought.
43. In this connection, we may usefully refer to a ruling of the English Court in Laird v. Briggs, (1880) 16 Ch D 440. In that case the plaintiff claimed to be a tenant in possession of the part of the fore-shore in the sea at Margate and he sought to restrain the defendant from removing shingle from the fore-shore. The defendant claimed an easement by reason of his enjoyment entitling him to do the acts complained of and also stated that the plaintiff was in possession of the foreshore in question subject to his rights.
At the trial he wanted to have his written statement amended by striking out the qualifying words 'thus making his denial of plaintiff's possession an absolute one and claiming the possession of the foreshore.' Justice Fry disallowed it remarking that it would completely change his case.
44. The case on hand is not one where the party was unaware of his rights and came to know of them some time after the tiling of the written statement. He was fully aware of the existence of the will and what rights flowed from it. But, he chose to deny its genuineness since it suited his purpose then. It should be borne in mind in this context that at that time his sister i.e. the widow of Venkata Subbarao was contesting the wilt and he must have thought that it would he more paying to sail with her rather than be content with a 1/12th share under the terms of the will.
It is only when the contest regarding the genuineness of the will was found to be unfruitful this change of front was resorted to. In the circumstances, we think the judgment of the lower appellate Court on this part of the case cannot be sustained.
45. None of the rulings called, in aid on he-half of the 5th defendant (3rd respondent) is helpful to him. In Ahmed Hossein v. Chembelli, : AIR1951Cal262 , in a suit on a dishonoured cheque it was not recited in the plaint that notice of dishonour was given or circumstances existed which rendered it unnecessary to issue such a notice. The plaintiff was permitted to introduce the statement. The learned Judge thought that it should be done in the interests of justice.
In Pramada v. Sagarmal, : AIR1954Pat439 an additional claim was permitted by the High Court by way of amendment for the reason that by the time the amendment was sought, only preliminary issue was decided and the case had not been taken up. It was remarked in the course of the judgment that amendments ought to be granted unless a party was acting mala fide or by his blunder some injury to his opponent which could not be compensated by costs would be caused. The rule stated in Union of India v. Shalimar Tar Products. : AIR1953Pat131 is the same as the one in : AIR1954Pat439 .
46. In Amolakchand v. Firm, Sadhuram Tularam, AIR 1954 Nag 200 the defendant who admitted in the written statement the plaintiffs right for redemption of a mortgage was permitted by way of amendment to set up ownership and exclusive title to the property in dispute and thus denied the plaintiff's right to redeem. It was held by Justice Chowdary that though the amendment would change the nature of the defence it could be allowed if sufficient grounds were shown. In support of his decision, the following passage from Cropper v. Smith, (1884) 26 Ch D 700 was extracted :--
'It is a well established principle that the object of the Courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their case by deciding otherwise than in accordance with their rights.... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct if it can be done without injustice to the other party.'
These remarks were also relied on strongly by the counsel for the respondent. It is plain from that passage that if the error or mistake is fraudulent or was designed to overreach, a Court will not allow amendment. We need not express our view, as to the correctness of the authority of that case. There, it is specifically stated that such an amendment would not be allowed if asked at a late stage and even otherwise the request could be granted only if sufficient grounds are shown.
Another instance of an admission made by one of the defendants being allowed to be withdrawn by amendment is Hollis v. Burton, 1992-3 Ch D 226. The amendment was permitted as it was proved by reliable evidence that the admission was made by mistake. In Bhimudu v. Pitchayya, 1946-1 Mad LJ 462: (AIR 1946 Mad 497) the new relief asked for in the amendment petition was necessitated by something that had occurred after the filing of the suit and so an appropriate relief was to be asked for by amending the plaint.
In Gopalarao v. Peda Kitamma, : AIR1955AP138 , a suit in individual capacity was allowed to be converted into one in a representative capacity as a manager of the joint family. Another case relied on by the 3rd respondent is Chunnilal v. Deoram, AIR 1948 Nag 119. Far from establishing any theory favourable to him, it negatives his case. It is laid down there that amendment of pleadings shall not be allowed unless the amendments are necessary for the decision of the real question in controversy, and that the real question in controversy is one which is involved in the issues framed in the trial court.
A Court will not allow an amendment which would completely change the front in the defence and the defence should not be so altered as to introduce a set of circumstances different from and inconsistent with those pleaded initially. No principle can be extracted from any of these authorities which is contrary to what we have stated. On the other hand, the observations in some of the cases are detrimental to this respondent.
The 5th defendant was acting mala fide as indicated above and moreover the application for amendment of the written statement as also for the deletion of some and recasting of the issues was very late i.e., after the trial ended and just before the delivery of the judgment. Consequently, the 'beneficial legal principle' embodied in Order 6 Rule 17 C.P.C., cannot be taken advantage of by him. There are no valid grounds for allowing an amendment of this nature. It follows that the appeal as against the 5th defendant is allowed without costs. It is dismissed with costs as against plaintiff and defendant 4.
47. This appeal having been set down this day for being mentioned, the Court made the following:--
48. A consolidated sum of Rs. 750/- is fixedtowards advocate's. Out of this, the plaintiff's Advocate will get Rs. 500/- and the 4th defendant'sAdvocate Rs. 250/-.