M. Natesan, J.
1. The plaintiff whose suit for partition and separate possession with mesne profits has been dismissed in limine without going into the merits of the case on certain preliminary issues has preferred this second appeal. The case of the plaintiff was that the entire suit properties belonged to his father as his self-acquisitions and that the father bequeathed the properties under a Will in favour of the plaintiff, his elder brother Thirumalaiswami and his mother the second defendant,, each legatee getting a third share in the properties. Thirumalaiswami, it is said, died, a boy and his share also devolved on the plaintiff. The plaintiff alleged that in the circumstances he became entitled to a two-third share in the properties, his mother impleaded as second defendant in the suit being entitled to the remaining one-third share. He would allege that during his minority his mother had executed an usufructuary mortgage and followed it by a sale in favour of the first defendant for no consideration or necessity. He would further allege that the transactions are contrary to law and that he could ignore them. On the averments he would claim partition and possession of his two-third share. The 1st defendant, the purchaser in possession, in his written statement contended that the sale was for necessity and benefit of the minors, that the minors themselves had been eo nomine made parties to the transaction and the plaintiff cannot ignore the sale, but must sue to have the transaction set aside. It was pointed out in the written statement that a higher Court-fee should have been paid. It may be stated that the sale deed in favour of the 1st defendant had been filed along with the plaint. There was also a plea that the suit was barred by limitation, the suit not having been filed within three years of the plaintiff becoming a major. Of the several issues framed, Issue 3, ' whether the suit for partition is maintainable without setting aside the alienations ' and Issue 7 ' whether the Court-fee paid is not correct?', were set down for hearing as preliminary issues.. The plaintiff meanwhile applied by Interlocutory Application No. 653 of 1962,. for amendment of the plaint so as to include a prayer for having the alienations set aside. This application was dismissed, by the learned District Munsif on 23rd June, 1962, and following, on the preliminary issues he held, that the suit is not maintainable without praying to have the alienations set aside and that the Court-fee paid was not correct. On this view of the preliminary issues, the suit was dismissed. On appeal, the learned First Additional District Judge has confirmed the dismissal of the suit on the preliminary issues. It was brought to his notice that the plaintiff had hardly any time to challenge the dismissal of his application for amendment and that the suit had been taken up for trial and disposal shortly after the orders on the application for amendment. The learned District Judge expressed the view that even considering the question of amendment independently--the plaintiff had made it a point in the memorandum of appeal--as it was well established that an amendment of the plaint which would deprive the defendant of a valuable right of limitation should not be allowed, be could not allow the amendment. Hence the matter has been brought up in second appeal.
2. That the plaintiff must value the suit as one for setting aside the impugned alienation and pay Court-fee accordingly is not disputed before me. The question is now settled by the Full Bench decision of this Court in Sankaranarayana v. Kandasami : AIR1956Mad670 . It will be interesting to note that in the case that came up before the Full Bench the plaintiff who impugned the alienation had not specifically asked for the cancellation of the sale deed which had been executed by his mother in that case. The defendant contended that the plaintiff could not bypass them and ask for mere possession ignoring the sale deeds. A question of jurisdiction also was involved in that case as, if the relief had to be valued as one for setting aside, the value for purposes of jurisdiction went up. The Full Bench in the case held that a plaintiff who as a minor had been made eo nomine a party to a sale deed or other document of alienation by his mother and guardian had to pay Court-fee under Section 7 (iv-A) Madras Court-fees Act and that he cannot ignore and bypass the alienation, as the alienation was not void but only voidable. He should get it set aside. This Court directed the District Munsif in that case to assess the valuation of the suit after hearing both sides. What has to be noticed is there was no specific amendment of the plaint ordered in that case.
3. It is contended before me for the appellant that if in fact the relief of cancellation of the alienation was involved on the averments in the plaint, the suit ought not to have been dismissed in limine but requisite Court-fee called for; at any rate the Court should have in the circumstances allowed the plaintiff to amend the plaint. Learned Counsel points out that the necessary averments are there in the plaint. The plaintiff has stated that his mother who was his guardian had made the alienations and that the alienations were illegal and not binding upon him. He prays for relief of partition on the basis that the alienations are not binding upon him. He would no doubt say that he can ignore them. The question whether on the averments and on the facts as they turn out, the transaction is void or voidable is a matter for inference. The relevant facts are found in the plaint. It may be' that there is no specific prayer for avoiding or setting aside the sale. But it is necessary incidental or preliminary step for the grant of the substantial relief of partition and possession. By simply stating that he was ignoring it the plaintiff cannot get round the bar of limitation, if that relief was barred. It could be said that the plaintiff is seeking to evade payment of the proper Court-fee. The alienation will be a bar to his getting the relief of partition. It being a voidable transaction he must have it set aside. In such circumstances, the Court would itself not permit the plaintiff to evade payment of the proper Court-fee on the plaint. I may in this connection refer to the observation of this Court in Ramaswami v. Rangachariar : AIR1940Mad118 .
I am unable to accept the plaintiff's contention that he should not be called upon to pay Court-fees in respect of any of the transactions which he challenges because he has not asked for specific relief in respect of them. His plaint challenges the validity of transactions entered into by his father as manager of the family and particulars of these transactions have been supplied. The plaintiff must pay Court-fees in accordance with the relief which he is actually seeking. He cannot be allowed to evade payment by omitting to ask for relief when the success of his suit depends on relief being granted to him. The Court must look at the real nature of the suit and decide what the plaintiff is asking for. In this case he is asking for possession of His share in the estate to be calculated after certain transactions have been set aside....The plaintiff is in effect asking in respect of alienations where possession has passed to the alienees that they be set aside and that he be placed in possession of his share of the properties alienated. In respect of these transactions the plaintiff clearly has to stamp his relief in accordance with the provisions of Section 7 (v).
4. It is in the light of the decision one has to consider whether the amendment prayed for in this case should not have been allowed. What is lacking in the plaint in this case is a specific prayer that the alienations should be set aside. The plaintiff had stated in the body of his plaint that he could ignore them. In law be cannot ignore them before getting his share, but he must have them set aside.
5. Learned Counsel for the respondent in support of his contention that the amendment ought not to be allowed when a fresh suit for the relief would be barred, referred me to the decision of this Court in Vaithilingam Pillai v. Kandaswami Pillai (1930) 60 M.L.J. 713. I do not find how this case can help the 1st defendant in this case. Reilly, J., sums up the rule regarding allowing amendment thus at page 714:
As is well known, a plaint may be amended at any stage of a suit, subject to proper provision as to costs, for the purpose of bringing out the questions really in controversy between the parties or for correcting any mistake or error in the plaint which has obscured the plaintiff's real claim as intended by him but plaints cannot properly be allowed to be amended if the amendment would change the fundamental character of the suit, would change a suit based on one legal relation into a suit based upon another one or a suit based upon one title into a suit based upon another title, when the plaintiff's claim on the second legal relation or title is time-barred on the date on which the application for amendment is made.
Here it may be that on the date of the application for amendment, a suit for cancellation or setting aside the impugned alienation may be barred, but, as pointed out earlier, on the averments in the plaint and the relief asked for, the cancellation of the alienation is involved on the pleadings. Only it has not been made specific. May be the plaintiff had hoped to evade payment of the higher Court-fee that would be payable if there had been a specific prayer for having the sale set aside.
6. In Charan Das v. Amir Khan (1920) 39 M.L.J. 195 : L.R. 47 IndAp 255, the plaintiff had sued for a declaration of his right to pre-empt over certain lands. There was no prayer for possession and the suit as framed would be clearly barred by Section 42 of the Specific Relief Act. An application for amendment of the plaint to include the claim for possession was disallowed in the trial Court as well as in the first appellate Court on the ground that the time had expired for bringing a suit to enforce the right. On second appeal the High Court allowed the amendment to be made and the Privy Council upholding the order for amendment only observed that, though there was full power to make amendment, such a power should not as a rule be exercised where the effect was to take away from a defendant a legal right which had accrued to him by lapse of time. But they pointed out that there were cases where such considerations were outweighed by the special circumstances of the case. Referring to this case, in P. H. Patil v. K. S. Patil : 1SCR595 , the Supreme Court observed that the power exercised was within the discretion of the High Court and that the amendment made in that case did not really introduce a new case and the opposite party did not have to meet a new claim set up for the first time after the expiry of limitation. In Leach & Co., Ltd. v. Messrs. Jardine Skinner & Co. : 1SCR438 , an amendment to the plaint was allowed by the Supreme Court itself. There a suit which had been laid for damages on the footing of conversion had to fail and this involved the dismissal of the appeal to the Supreme Court. But the plaintiffs applied in the Supreme Court for amendment of the plaint by raising in the alternative a claim for damages for breach of contract for non-delivery of the goods. It was opposed by the defendants contending that the amendment would introduce a new cause of action and that a suit on that cause of action would be barred by limitation. It was urged that the plaintiffs had ample opportunity to amend their plaint but they had failed to do so. While observing that there was considerable force in the objection, the Supreme Court thought that it was a fit case in which the amendment ought to be allowed. It was observed at page 362:
The prayer in the plaint is itself general and merely claims damages. Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods.
It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of application. But that is a factor to be taken into account in exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice.
7. The amendment prayed for was allowed in the view that the justice of the case required it.
8. My attention was also drawn by learned Counsel for the appellant to another recent decision of the Supreme Court in A. K. Gupta & Sons v. Damodar Valley Corporation : 1SCR796 , where it was observed at page 99:
The amendment sought is necessary for a decision of the real dispute between the parties which is, what are their rights under the contract? That dispute was clearly involved in the plaint as originally framed. All the necessary basic facts had been stated. Only through a misconception a relief which could be asked on those facts had not been asked.
9. On the principles above enunciated it follows that it would be a proper exercise of jurisdiction to allow the amendment prayed for in the present case, as it is involved in the ultimate relief of partition and possession which had been claimed. The learned District Judge has refused the amendment in the view that the Court could not allow an amendment which would deprive the defendant of the valuable right of limitation. He has failed to appreciate that this is not an invariable rule and that the Court may in appropriate cases, allow the necessary amendments. The failure to perceive the scope of his discretion and the power he had in the matter of amendments has vitiated his exercise of discretion in this regard. I may here remark that the judicial Committee in Charan Das's case (1921) 39 M.L.J. 195 : 1921 L.R. 47 IndAp 255, above referred to observed:.However defective the frame of the suit may be the plaintiff's; object was to pre-empt the land; their cause of action was one and the same whether they sued for possession or not.
10. Here the cause of action which has necessitated the plaintiff's coming to Court is the alienation made by his mother. That has deprived him of his possession of his rightful share in the property. He is attacking that alienation. The law requires that it must be set aside specifically and could not be ignored. The grant of the relief he prays for involves the setting aside of that sale. Clearly it cannot be said that a wholly foreign or new cause of action is introduced in the plaint after any suit on that action would be barred by limitation.
11. However, the amendment can be allowed only on terms. The first defendant was perfectly justified in pleading that there must be a specific prayer for having the alienation set aside. The matter has come up to three Courts and the 1st defendant had to bear the costs of defence in the three Courts. I think it is just and proper that the amendment must be allowed on the plaintiff paying the 1st defendant his costs in all the three Courts.
12. In the result, the decrees and judgments of the Courts below are set aside and the suit remanded back to the trial Court for disposal according to law. The trial Court will allow the amendment prayed for in Interlocutory Application No. 653, of 1962 and call upon the plaintiff to pay the appropriate Court-fee due on the plaint. It is pointed out by learned Counsel for the 1st defendant that he has raised an issue that the suit, even as originally filed, is not in time and it has not been, heard and disposed of by the trial Court. It is a matter for disposal on evidence. The effect of allowing the amendment is to treat the plaint as having contained a prayer for setting aside the sale from the date of the institution of the plaint and nothing more. All pleas in defence are open to the defendant. The second appeal is allowed accordingly. If costs of the Courts below have been paid already by the plaintiff to the 1st defendant, they will be retained by the first defendant under the terms of the order as to costs, made here. The plaintiff will then have to pay only costs of this Court in second appeal. Whatever costs are payable in terms of this judgment shall be paid at or before the first hearing of the suit in the trial Court after the receipt of records by that Court.
13. No leave.