Salil Kumar Datta, J.
1. This Rule is directed against order No. 112 dated 30-9-1975 allowing the amendment of the plaint in a suit filed on 19-8-1970. The plaintiff opposite party Instituted the suit for declaration on his share in 'ka' and 'kha' schedule properties of the plaint and for partition of his share by metes and bounds on allegations stated in brief as follows :--
One Behari Lal Das acquired 'ka' schedule property in the benami of his daughter-in-law Siddeswari; 'kha' schedule property was acquired by mortgaging 'ka' schedule property as also out of its usufructs in the name of Sidheewari aforesaid who had no income or fund by herself. The defendant No. 1 who is full brother of the plaintiff obtained the deed of gift of the said property in his favour on 7-10-1967 from Sidheswari by exercising of fraud and undue influence on revocation of the earlier deed made in favour of defendant No- 2 their full aster, in respect of 'ka' schedule property. The said deed of 1967 was not binding on the plaintiff and as Sidheswari acquired 1/4th Interest by inheritance, by the aforesaid deed she could convey only her 1/4th share to the defendant by the said deed executed by her. The plaintiff accordingly prayed for declaration that her mother Sidheswari was merely a name lender in respect of suit properties and the deed of 7-10-1967 was not bindingon him. He claimed as 1/4th share in the property and 1/12th share as heir to his mother Sidheswari in all his 1/3rd share and for partition of his share by metes and bounds.
2. In their joint written statement the defendants 1 and 2 denied the allegations and the claims made in the plaint and further stated that Sidheswari acquired the properties herself. By deed of 1967 and further three deeds executed by her free will dated 31-7-1368 she transferred respectively 'ka' schedule property to the defendant No. 1 and different portions of 'kha' schedule property to the defendant No. 1, to his son and also to the defendant No. 2 and the plaintiff had thus no title or interest in the suit property. The plaintiff thereafter by an application for amendment dated 13-3-1974 wanted to amend the plaint alleging that through misconception of law his share in the said property was not correctly stated and further because of his absence of knowledge of the deeds of 31-7-1968 which he came to know for the first time from the written statement he could not make specific allegations in respect thereof in the plaint For these reasons he wanted to amend the plaint stating in addition that the deed of 31-7-1968 were obtained by taking advantage of the senility and mental weakness of Sidheswari due to old age and they were not binding on the plaintiff; further on the death of Behari Lal Das according to the Hindu Law of succession the plaintiff as also the defendant No. 1 inherited the suit properties in equal share. It was also stated that the son of the defendant No. 1' was also to be impleaded in the suit as defendant No. 3 in the aforesaid circumstances. There was further prayer for insertion of specific particulars relating to description of the suit property.
3. This application was opposed by tile defendants 1 and 2 and by the impugned order the learned Judge allowed the amendment subject to payment of costs of Rs. 100/-. It was held that the proposed amendment should be allowed for determining the real question in controversy between the parties and there was no question of any prejudice to the defendants as they would be given opportunity to meet the case made out by the amendment and would be compensated with costs. Further there was no question of limitation as these three years had not elapsed from the filing of the written statement.
4. Mr. Sakti Nath Mukherjee, learned advocate appearing for the petitioner referred to various decisions and submitted that the proposed amendments brought in new facts inconsistent with the original case. The amendments proposed formed no part of the original controversy and amounted to a negation of the admitted position previously taken by the plaintiff in his plaint. In such case the amendment was impermissible according to the judicial decisions. He referred to the decision in Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249 in which it was noted that the real question in controversy between the parties was the existence and character of the agreement made in 1912. When the existence of that contract had been negatived, to permit the plaintiff to set up and establish another and an independent contract would be altogether 'outside the provisions of the Code. The Court observed as follows :--
'All rules of Court are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose so that full power of amendment must be enjoyed and should always be liberally exercised, but nontheless 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 suit.'
He also referred to the earlier decision in Md. Baksh Khan v. Husseini Bibi, (1888) 15 Ind App 81 at p. 86 (PC) for the proposition that though inconsistent pleas are permissible, inconsistent or mutually destructive facts are not permissible in pleading and accordingly the contradictory allegations to the admitted position is also not permissible in law. He referred to the decision In Kanda v. Waghu, AIR 1950 PC 68 in which the Privy Council held that the amendment which involves the setting up of a new case and alters the real matter in controversy between the parties cannot be allowed. He referred to the decision the Nirsingh pro-sad v. Steel Products Ltd., : AIR1953Cal15 for the proposition that the plaintiff cannot be allowed to amend his plaint so as to alter materially or substitute his cause of action or nature of the claim made earlier. Reference was made to Sk. Masthan v. Palayani Balarami Reddi, : AIR1953Mad958 for the proposition that proposed amendment of written statement in direct negation of admission containedin the written statement is not permissible in law and this rigour applies in greater force in respect of amendment to plaint. In Jaldu Anantha v. Jaldu Bapanna, : AIR1959AP448 the Court disallowed the proposed amendment to written statement which displaced the original one and destroyed all that was stated and claimed therein. According to Mr. Mukherjee on all these authorities, in the facts of the present case, the proposed amendment substituting the new case in alteration of the admitted position should not have been permitted by the trial Court.
5. The principles established by judicial decisions in respect of amendmentof plaint are as follows :--
(i) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit.
(ii) All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject-matter of or controversy in the suit is not permissible.
(iii) Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment.
(iv) In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs.
(v) Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstances of the case.
6. The contention of Mr. Mukherjee in our opinion appears to be unsubstantial as contended by Mr. S. P. Boy Chowdhury learned advocate appearing for the plaintiff opposite party. The case before us is a suit for partition on declaration of plaintiff's title to the suit property. In the original plaint it was stated that the ostensible holder of the property was merely the name lender and the 'ka' schedule property was in fact acquired by Lal Behari in benami of Sidheswari while 'kha' schedule property was acquired against and out of 'ka' schedule property and its usufructs Thereafter it is stated in the original plaint that Sidheswari acquired 1/4th interest by inheritance. This was according to the plaintiff a mis-statement made on the misconception of law of Hindu Succession and by the amendment it was merely stated that Sidheswari never acquired any share under the law of Hindu succession, while the plaintiff and the defendant No. 1 together inherited 8 annas share in the suit property. This is not substitution of a new case in place of the original one and nor a change in respect of the real nature of controversy or the subject-matter of the suit. Accordingly we do not find that the authorities cited by Mr. Mukherjee are of any assistance to him on the contrary they support the case for the amendment as sought for by the plaintiff.
7. The next point is urged by Mr. Mukherjee that in any event amendment should not, be allowed as the claim sought to be made by the amendment is otherwise barred by limitation. He submitted that by the proposed amendment the subsequent deeds are being sought to be set aside. The deeds were exempted in 1968 as already stated and on the day the amendment application was filed in 1974, clearly three years passed away therefrom and accordingly on the date the amendment was sought for the claim in respect of the deeds aforesaid was barred by limitation under Article 113 of the Limitation Act, 1963. Reference was made in support to the decision in Md. Fahimal v. Jagat Ballav, AIR 1923 Pat 475 in which it was held that the suit to contest alienation by Mutwali and for possession must be brought Within six years from date of alienation under the old Limitation Act. Reference also made in the decisions in Ottappurak-kal Thazhate Soopi v Cherichil Pallikkal Uppathumma, (1910) ILR 33 Mad 31 and C. Parasanna Venkatachella Reddiar v. The Collector of Trichinopoly, ILR 38 Mad 1064 = (AIR 1914 Mad 708), in support of the above proposition. He accordingly submitted that the Court had no jurisdiction to allow the amendment after the period of limitation in respect of the claim has already expired.
8. Mr. Roy Chowdhury contended On the other hand that the starting point of limitation is not the date of alienation but the date on which the aggrieved party conies to know of the alienations or an invasion of his right to the property in dispute. He submitted that the case is governed by Article 58 of the Limitation Act which provided for three yearslimitation from the date of accrual of the cause of action as aforesaid. In the instant case according to Mr. Roy Chowdhury the cause of action arose on the date of knowledge of the plaintiff from the written statement that there has been such alienations and invasion of his right therein against which he prayed for declaration that such documents are not binding on him. He referred to the decision in Ahmed Ali v. Banguluru, : AIR1959AP280 in which it has been held that suit for declaration that alienation is not binding on the creditor under Section 53 of the Transfer of Property Act is governed of Article 120 of the old Limitation Act. It was held that the cause of action does not arise on the date of alienation but on the date when the creditor who seeks to set aside the alienation knows that he has been defrauded, defeated or delayed. He also referred to an earlier decision in Bhagatram v. Para-ram, AIR 1934 Lah 574 where it was held that the cause of action arose from the date of knowledge of fraud though governed by Article 120. In any event in L. J. Leach and Co. Ltd. v. Jardine Skiner and Co Ltd., : 1SCR438 following Charan Das v. Amirkhan, AIR 1921 PC 50 the Court allowed the amendment even when the effect was to take away the legal right which had accrued to the defendant by lapse of time as even so there might be cases where such considerations are outweighed by the special circumstances of the case. Mr. Bhaskar Ghose's rejoinder appearing for the opposite parties was that Article 58 applied when the claim on documents was the substantive claim in the suit and not an ancillary claim as here.
9. It has been held that 'the right to sue' in Article 58 which is the residuary Article on suits relating to declarations is not there until an accrual of the right asserted and its infringement or at least a clear and unequivocal threat to, infringe that right by the defendant against whom the suit is instituted as was held in Mt. Bolo v. Mt. Koklan, AIR 1930 PC 270 as also in Md. Yunus v. Syed Un-nissa, : 1SCR67 . Though there is no reference in the Article to the knowledge of the plaintiff, there may be cases where the nature of the right imports knowledge of certain facts and in such case the right to sue cannot be said to arise until the plaintiff have the necessary knowledge, as was held in Sheonandan v. Ugrah Sao, : AIR1960Pat66 . If was further held that there can be no apprehension of threat to right where due to mistake or fraud things are done in secrecy or at the back of the plaintiffs.
10. According to the plaintiff he was not aware of the purported transfers of 1968 prior to the filing of the written statement by the defendant and that was the date of his first knowledge in respect thereto when there was the invasion of his right in the suit properties. On the fact of these allegations we are prima facie satisfied that the claim that the said deeds are not binding on him was within the period of limitation being within three years from the date of filing of the written statement which is to be deemed to be the accrual of the cause of action subject however to the determination of the controversy in the suit during the trial.
11. The last contention raised is that the defendants Nos. 2 and 3 were the Unnecessary parties even according to the amended plaint as proposed and as such their names should be struck out from the suit. Mr. Roy Chowdhury has referred to the decision of the Full Bench in Sebarani v Ramandra Nath, : AIR1963Cal46 (FB) in which the Court was considering that whether the suit should come out of Clause V-A of Article 17, Schedule II of the Court-fees Act, 1870 where a stranger was a party in a partition suit. In this case the plaintiff joined as a defendant a stranger that is the person who was not the co-sharer or co-owner, for enforcing in his presence the right of the plaintiff to a share in the suit property claimed by him. This involved construction of documents of suit properties in which the stranger was or claimed to be interested. It was observed by P. N. Mookerjee, J. in the concurring judgment as follows :--
'If the determination of the question whether the suit property is a joint property or joint family property of the persons between or amongst whom partition or joint possession is claimed that is of the plaintiff and the persons against whom the said relief is claimed, depends only on the construction or avoidance of any document, not necessitating its setting aside or cancellation, it is in substance and may well be in form too, a suit for partition and separate possession or enforcement of a right to a share of the alleged joint property or joint family property even though a stranger may be interested in or affected by the result or decision of the suit.'
12. In such case the party who would be otherwise interested in the property in case Sidheswari be found to have a share in such property is a necessary party in the partition suit on declaration. Similar is the case when a stranger also claims to be interested in the property in suit on the basis of document impugned by the plaintiff is not binding on him. Accordingly the defendants Nos. 2 and 3 are also necessary parties in the suit and the suit should be decided in their presence.
13. For all these reasons the impugned order suffers from no infirmity and has to be sustained. The rule accordingly is discharged. There will be no order as to costs. We are making it clear that we are not expressing any opinion on the merits of the case or otherwise of the parties before us in the suit.
14. Let the order be communicated to the trial Court at once, as prayed for.
G.N. Ray, J.
15. I agree.