1. The plaintiff and defendant 3 are sons of one Veerasami who died on 14th May 1926. The plaintiff's deceased father and defendant 1 were carrying on a partnership trade. On 29th May 1926 defendent 1 got a release deed executed by defendant 3 and by the mother of plaintiff as the latter's guardian by which plaintiff and defendant 3 received Rs. 9,000 for their share in the partnership. Plaintiff filed this suit for accounts of the partnership to be taken. He stated that the release deed was not binding on him as his mother was neither de jure nor de facto his guardian in executing it, and moreover that it was obtained by fruad, coercion and undue nfluence.
2. Defendant 1 contended that plaintiff was bound by the release and had to get it set aside before he could sue. As the decisions of the High Court appeared to be conflicting as to whether such a deed had to be set aside, it having been held by a single Judge of this Court in Doraiswami v. Thengavelu : AIR1929Mad668 , that it was necessary to set aside such a deed by suit, but previously by a Bench of two Judges in Veeraraghavulu v. Sreeramulu : AIR1928Mad816 , that it was not necessary, plaintiff asked to amend the plaint out of abundant caution by adding a specific prayer for a declaration that the release deed executed by his mother as his guardian is not valid or binding against plaintiff. This amendment was allowed and the present revision petition has been filed against the order allowing it.
3. It is argued that the amendment alters the nature of the suit from one for partnership accounts into one for a declaration that the release deed is not binding on plaintiff. I have been referred by the learned advocate for the petitioner to three cases in support of his contention, but I do not think they are parallel. The first is a decision of my own in Ibramsa Rowther v. Muhammad Esuf Rowther : AIR1930Mad322 . There the root of plaintiff's title was distinctly sought to be changed by the amendment. The second, Krishnamachariar v. Arunachala Nadar : AIR1927Mad973 , was a perfectly clear case of changing the cause of action and in the third, Veerabhadra Thevan v. Vaithianathaswami A.I.R. Mad. 182 the amendment deprived the defendant of a plea of limitation which be would have had otherwise. On the other side are quoted the cases relied on by the lower Court, Somasundara Bhattar v. Muthu Thewar : AIR1927Mad188 and Ismail Bibi Ammal v. Moideen Abdul Kadir : AIR1929Mad273 . The latter is a decision by myself, but I think it has not much application to the present case. The former is a decision by Jackson, J, and is more in point and to my mind, an amendment which went further than anything in the present case, and was yet allowed. The allegations in the plaint are substantially unaltered. The suit remains one for accounts. The plaint discloses the release deed in full but states that it does not bind the plaintiff. The only alteration now asked is an additional relief that if the deed requires to be set aside before relief can be granted this should be done.
4. This is necessitated by a legal doubt, though even here the ruling of the Bench is in support of the plaintiff's original position that the release deed does not need to be set aside, the opposite view being only that of a single Judge. I wish to guard myself against saying that if the law were perfectly clear that a re-lease deed like this had to be Bet aside the proposed amendment might not possibly be altering the character of the suit. As to that I express no opinion. But when the amendment is only asked for out of abundant caution because of a conflict of decisions on the point I consider that it should be allowed. It does not injure the defendant and prevents plaintiff being formally driven to a fresh suit on the same matter. The petition is dismissed with costs (two sets).