1. This is a petition by defendants 1 and 2 in O.S. No. 155 of 1944 on the file of the Subordinate Judge's Court, Nellore, to revise the order of the learned Subordinate Judge allowing the amendment of the plaint in the following circumstances. The suit was instituted by the first respondent for recovery and possession of the properties described in the plaint schedule. The plaintiff's case was based on two specific titles. One was on the footing that he had been validly adopted to one deceased Venkatacharlu to whom the suit properties admittedly belonged. The other was under his last will and testament, dated 21st August, 1936 bequeathing in favour of the plaintiff the entire estate as a persona designata . In paragraph 7 of the plaint it was alleged that on 12th August, 1936, the deceased Venkatacharlu got a draft will prepared and on the 16th August, 1936 he gave a draft to the first respondent's father for his approval and that exception was taken to it on the sentimental ground that it contained inauspicious reference to the early death of the plaintiff. In paragraph 12 there was an averment that the will of 2 1st August, 1936, propounded by the plaintiff contained recitals that the plaintiff had leen taken in adoption and that the testator intended to have the Dattahomam and Upanayanam performed and that it also contained a direction to the, first defendant that his widow should perform these acts. For this title based upon adoption he relied upon certain facts pet out in paragraphs 5 and 6 of the plaint. It is not necessary to deal with them in any detail. The contesting defendants in their written statement inter alia stated that the deceased Venkatacharlu, as a matter of fact, executed a will on 16th August, 1936, but that it was duly cancelled by him on the 21st August, 1936, for certain reasons. In spite of these allegations the plaintiff did not take any steps at that stage to file a statement in rejoinder nor did he choose to file an application for amendment. After the trial commenced and after the evidence for the plaintiff was over and the evidence on behalf of deferdants was being taken an application for the amendment of the plaint was made. By this amendment the plaintiff sought to add the following paragraph 14 of the plaint:
In the written statement of the first defendant it is contended that Venkatacharlu got a will written on 12th August, 1936, and executed on 16th August, 1936 and got it duly attested but that he cancelled on 21st August, 1936, for reasons mentioned in the written statement. Plaintiff submits that while it is true that Venkatacharlu executed a will on 16th August, 1936, he did not cancel it on 21st August, 1936 , as pleaded by the defendant. The allegation in the written statement of the first defendant regarding the circumstances and reasons for the said cancellation by the said Venkatacharlu on 21st August, 1936, are all false. The handwriting of the alleged cancellation and the signature, dated 21st August, 1936, are not those of Venkatacharlu and are concoctions for the purpose of this suit. If, for any reason, the Court should hold that the will, dated 21st August, 1936, propounded by the plaintiff is not true, plaintiff is entitled to fall back upon the will, dated 12th August, 1936, as being the last will and testament of the late Venkatacharlu and support his claims for the reliefs in the suit thereby. Eyen if it is held that the will, dated 12th August, 1936, was the last will and testament of the late Venkatacharlu and was cancelled the cancellation would not revoke the authority to adopt therein and any adoption made by the 1st defendant contrary to the direction therein would be invalid-in law.
This paragraph which was sought to be added comprises arguments as well as fresh allegations in support of the plaintiff's claim. Firstly, it is sought to to contended that the alleged cancellation relied upon by the contesting defendants is not true. For this I do not think there is any necessity at all for additional pleading. The defendants took upon themselves to put forward a specific case of a will and its cancellation on 21st August, 1936, for certain reasons. The onus would be on them to prove that there was a cancellation as alleged by them. It is always open to the plaintiff without any amendment to challenge by way of cross-examination or by other rebutting evidence the case of a valid cancellation. It can be argued by the plaintiff that the defendants have not proved their case of a valid cancellation either because the signature purporting to be that of the testator is not genuine or for any other reason. As I have already mentioned there is no reason for allowing the amendment of the plaint on this ground. Secondly, the amendment is not necessary to set out the contention contained at the end of the paragraph, namely, that if the cancellation is genuine such cancellation would not in law have the particular result for which the defendants contend. We are, therefore, left with the following clause which really contains a substantive addition sought to be made to the plaint, namely:
If, for any reason, the Court should hold that the will, dated 21st August, 1936, propounded by the plaintiff is not true, plaintiff is entitled to fall back upon the will, dated 12th August, 1936, as being the last will and testament of the late Venkatacharlu and support his claim for the reliefs in the suit cherehy.
Here again it may be mentioned, if all that the plaintiff seeks to obtain by this amendment is only permission to rely upon the recitals contained in the will, dated 12th August, 1936, as having some evidentiary value on the factum of adoption, in my opinion, he will be entitled to rely oh such recitals without an amendment of the plaint. The plaintiff can always rely on any statement which he thinks, will he of any material help to his case contained in documents filed on behalf of the defendants. If, however, as was made clear for the learned advocate for the plaintiff by this amendment the plaintiff seeks to rely on depositions contained in the will, dated 12th August, 1936, as the basis of his title to the suit properties, I am clearly of opinion that the plaintiff is not entitled to the amendment. The original plaint proceeded on two alternative titles: (1) a title as the adopted son of the deceased Venkatacharlu and (2) a title as the legatee under the will of the said Venkatacharlu, dated 21st August, 1936. Now the plaintiff wants by this amendment to rely upon a third title, namely, title under the will, dated 12th August, 1936.
2. One of the rules stated by Mulla in his commentary of the Code of Civil Procedure is that where the plaintiff bases his claim on specific title he will not be allowed to amend the plaint so as to base it on a different title.
3. The learned advocate for the plaintiff relied upon several decisions of this Court in which amendments have been allowed. In my opinion none of those decisions has any direct bearing on the facts of this case and so I shall very briefly deal with them. In Mangammal v. Rangappa Naicker A.I.R. 1935 Mad. 137 the plaintiff claimed title to the property on the ground that it had fallen to the share of her husband and had been in his enjoyment for over 30 years. It was alleged in the written statement that the property in question was not joint family property and the plaintiff sought to amend the plaint by also relying on long possession and title by adverse possession. In that case the defendants admitted that there was partition between the plaintiff's husband and themselves. There was no question, therefore, of joint or constructive possession. The plaintiff had already stated that her husband had exclusive possession for a period well over the statutory period. By the amendment she was only allowed to develop her case by adding a new legal basis on the same facts. In Chellam Sakha Raju v. Muthuswami Mooppanar : AIR1936Mad632 the suit was on a promissory note which turned out to be invalid and it was conceded by the learned advocate for the defendant in that case, that the plaintiff could sue an the. original cause of action. The learned Judge held in that case that by allowing the amendment the lower Court did no more than allow the plaintiff to fall back upon the original cause of action. In Muthammal v. Guruswami Nayakan (1934) 67 M.L.J. 921, the plaintiff originally mentioned one ground of exemption from the bar of limitation and was subsequently allowed to add another ground of exemption. The decision in Mettu Bhimdu v. Duggirala Pitchayya : AIR1946Mad497 dealt with an entirely different set of facts which arose on account of the events happening subsequent to the original institution of the plaint. The first defendant in that case died and the plaintiff became entitled to possession of the entire property.
4. In my opinion, therefore, the learned Judge ought not to have allowed the amendment. I therefore allow the revision petition and dismiss the application in the lower Court I.A. No. 419 of 1946 with costs throughout.