Kerala High Court
Sindhulekha.C vs Sandhya.C on 15 July, 2025
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
OP(C) NO. 1043 OF 2020
AGAINST THE ORDER DATED 30.01.2020 IN IA.NO.884 OF 2019 IN OS
NO.42 OF 2013 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL
COURT, PAYYANNUR
PETITIONER/PLAINTIFF:
SINDHULEKHA.C
AGED 49 YEARS, D/O. LATE BHASKARAN PILLAI, P.M.C.XIX-
334, 1ST FLOOR, ANMAJUMMUVAL RESIDENTIAL COMPLEX,
NAYANAR HOSPITAL ROAD, PAYYANNUR PO, PAYYANNUR TALUK,
KANNUR DISTRICT.
BY ADV SRI.R.GIREESH VARMA
RESPONDENTS/DEFENDANTS:
1 SANDHYA.C,
AGED 36 YEARS, D/O.LATE C.KALLYANI, CHAMMANCHERI HOUSE,
AT KARIVELLUR, VADAKKUMBAD PO, PAYYANNUR TALUK,
KANNUR DISTRICT-670105.
2 SAJEESH C.,
AGED 34 YEARS, S/O.LATE C.KALLYANI, CHAMMANCHERI HOUSE,
AT KARIVELLUR, VADAKKUMBAD PO, PAYYANNUR TALUK,
KANNUR DISTRICT-670105.
3 SANEESH C.,
AGED 34 YEARS, S/O.LATE C.KALLYANI, CHAMMANCHERI HOUSE,
AT KARIVELLUR, VADAKKUMBAD PO, PAYYANNUR TALUK,
KANNUR DISTRICT-670105.
BY ADV SHRI.M.SASINDRAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.07.2025,
THE COURT ON 15.07.2025 DELIVERED THE FOLLOWING:
OP(C) NO. 1043 OF 2020 : 2 :
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JUDGMENT
This original petition is filed under Article 227 of the
Constitution of India against the order dated 30.01.2020 in IA
No. 884 of 2019 in OS No 42 of 2013 on the files of the Sub
Court, Payyannur rejecting the prayer of the petitioner for
amendment of the plaint. The status of the parties in this
judgment will be as referred in the suit.
2. The plaintiff is the only daughter of late C. Kallyani
Amma, an Upper Primary School teacher, the original defendant
in the suit, born of her wedlock with V. Bhaskara Pilla, who was
a teacher at Karivellur Manyaguru U.P. School. The plaintiff
was born on 09.04.1969 and her father died after one month of
her birth. After the death of Bhaskara Pilla, the defendant
resided with one Pariyarathu Padmanabhan, who later
committed suicide. The defendant sold the property that
belonged to the plaintiff's father, which was obtained through
Partition Deed No. 4532/61 of Krishnapuram SRO, as well as
the property purchased by him through Sale Deed No. 199/64
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of Baranikavu SRO. The defendant transferred the rights in the
properties belonging to Bhaskara Pilla, also acting in her
capacity as the guardian of the then minor plaintiff. Using the
sale proceeds from the said properties, along with the terminal
benefits, bank deposits, and insurance amounts of Bhaskara
Pilla, the defendant purchased the plaint schedule properties. In
the year 1979, the defendant married Kamalaksha Poduval, a
tailor, and three children were born from that wedlock. The
plaintiff stayed with the defendant and Kamalaksha Poduval
until she attained the age of 21. Later, the relationship became
strained, and the plaintiff began residing with her relatives. The
plaintiff is entitled to a half share in the plaint schedule
properties, which the defendant has refused to acknowledge. In
the year 2013, the plaintiff filed the suit for partition of plaint
schedule items 1 to 3 into two and to allot her one share.
3. The defendant entered appearance and filed a written
statement, wherein it is stated that although the plaintiff is the
only daughter born to the defendant in her wedlock with the
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deceased Bhaskara Pilla, the plaint schedule property was
purchased using funds from the defendant's own resources as
well as the amounts provided by her father. It is further stated
that the property obtained by Bhaskara Pilla under the partition
deed was in the possession and enjoyment of his brother, and
the same was transferred to him and his wife without any
consideration. The plaint schedule Item No. 2 property was
alienated by the defendant about 20 years ago, and the
remaining properties exclusively belong to her and are in her
possession and enjoyment. Accordingly, she prayed for
dismissal of the suit.
4. During the pendency of the suit, the sole defendant
died on 10.09.2018. The respondents herein, the children born
to the 1st defendant through her relationship with Kamalaksha
Poduval, were impleaded as additional defendants 2 to 4 in the
suit, as per the order in I.A. No. 551/2018.
5. Subsequently, when the plaintiff applied for a legal
heirship certificate, she came to know that there was no legal
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marriage between the deceased 1st defendant and Kamalaksha
Poduval. The plaintiff also learnt that, the 1 st defendant had
sold 12 cents of property from the plaint schedule properties to
her brother, C. Padmanabhan, through Sale Deed Nos.
4007/1999 and 4008/1999 of Payyannur SRO. It was further
revealed that the 1st defendant had availed of a loan from the
Karivellur Service Co-operative Bank by mortgaging the
remaining property. In light of these developments, the plaintiff
filed I.A. No. 884/2019 (Ext.P3) seeking amendment of the
plaint. The following amendments were sought to be
incorporated:
A. In the cause title after the name of the 1st
defendant, her husband's name is to be shown as
V.Bhasakara Pilla instead of Kamalakshan Poduval. The
names of additional defendants 5, 6 and 7 Kamalaksha
Poduval, C.Padmanabhan and Karivellur Service Co
operative Bank respectively are to be shown in the
cause title.
B. In all places in the plaint prefix "deceased 1 st" with
the word defendant.
C. The 3rd paragraph of the plaint it is written that "1st
husband of the defendant". From this the word "1st" is
to be removed. Then it is to be added that "the
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deceased 1st defendant and late Bhaskara Pilla belong
to Hindu religion and their marriage as per custom was
held in the year 1966 at Karivellur Siva temple."
D. In the 4th paragraph of the plaint the word 'eldest
daughter' is to be replaced with 'only daughter and
legal heir'.
E. In the 8th paragraph of the plaint is to be added that
"in the year 1980 the deceased the 1st defendant
developed an affair with Kamalaksha Poduval who was
having a wife living and children. They started living
together additional defendants 2 to 4 are born in that
relation".
F. In the 9th paragraph of the plaint it is to be added
that "after the death of the father of the plaintiff in the
1969 in order to purchase a property and to build a
residential building for the plaintiff and the deceased
1st defendant money was accepted by the deceased
1st defendant in advance from the brother of the father
of the plaintiff Parameswaran Nair and his wife
Saraswathi and executed deeds No. 1843/1977,
2543/1978 of Krishnapuram S. R. O." It is also to be
added that "the properties were transferred by stating
that it is for the need of the minor and it was done
without obtaining permission from the Court". Then the
following government was also sought to be added
"plaint schedule properties belonged to the plaintiff as
well as the diseased (sic.deceased)1st defendant as the
legal heirs of the deceased Bhaskara Pilla but after the
death of the 1st defendant the entire rights regarding
the plaint schedule property belonging to the deceased
1st defendant rests with the plaintiff alone who is her
legal heir".
G. In the 10th paragraph of the plaint it is to be added
that "after the death of the 1st defendant an application
was submitted for legal heirship Certificate that the
plaintiff came to know that the deceased 1st defendant
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is not married to Kamalaksha Poduval as he had a living
wife and children. The additional defendants 2 to 4 as
the children born in their living together relationship.
The plaintiff has applied for a legal heirship Certificate
before the Thahsildar, Payyannur by submitting that
she is the only legal heir to the deceased 1 st
defendant. The above mentioned Kamalaksha Poduval
and the additional defendants 2 to 4 have no manner of
right in the plaint schedule properties. Hence the suit is
filed for declaration that only the plaintiff has got right
and possession over the plaint schedule properties and
also to restrain the additional defendants from entering
the property".
H. In the 12th paragraph of the plaint it is to be added
that " after the death of the 1st defendant, when the
encumbrance Certificate of the plaint schedule property
was taken on 12. 11. 2018 that it came to know that a
document has been executed with regard to 12 cents of
the plaint schedule property in favour of the brother of
the diseased (sic.deceased) 1st defendant C.
Padmanabhan. It was done without the knowledge or
consent of the plaintiff who is having right in the
property hence it is not legal. The above mentioned C.
Padmanabhan has got no right or possession of the
property vide deed Nos. 4007/1999, 4008/1999 of
Payyannur S. R. O. Like that it was also revealed that
plaint schedule property has been pledged with
Karivellur service cooperative bank. Since it was done
without the consent or knowledge of the plaintiff she
has got no liability at all and she is not bound by it."
6. The additional defendants filed objections to the petition
for amendment contending that the original suit was filed for
partition of the plaint schedule property into two shares and for
allotment of one share to the plaintiff. In the plaint as well as in
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the application for impleading the additional defendants 2 to 4
as the legal heirs of the deceased 1 st defendant, it was averred
by the plaintiff that the additional defendants 2 to 4 are the
children born to the deceased 1st defendant in her marriage
with Kamalaksha Poduval. However, the contentions and reliefs
initially raised have been completely abandoned in the
proposed amendment. The application seeks to amend the
plaint in such a manner that it effectively becomes a new suit
for eviction and to substitute the original reliefs with a new
claim for declaration and recovery of possession. If allowed, the
amendment would fundamentally alter the nature of the suit
and would adversely affect the defendants.
7. The trial court, by Ext.P5 impugned order, held that
the amendment sought would alter the character of the plaint
and also change the cause of action. Therefore, the amendment
could not be permitted in its entirety in view of the decision
reported in Kalpana and Others v. Prem Kumar and
Another [2014 KHC 420:2014 (3) KLT 390]. However, the
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court observed that, for the purpose of determining the
plaintiff's liability towards the bank and the validity of the
document executed by the 1st defendant in favour of C.
Padmanabhan, their names could be incorporated in the plaint
by way of amendment. Accordingly, the petition for amendment
was partly allowed, and the plaintiff was permitted to amend
the plaint to the extent indicated as items 'A' to 'D' in the
petition. Aggrieved by Ext. P5 order insofar as it rejected Ext.
P3 petition for amendment as prayed for, the present original
petition is filed.
8. Heard Sri. R. Gireesh Varma, the learned counsel for
the petitioner and Sri. Satheesan Alakkadan, the learned
counsel for the respondents.
9. According to Sri. Gireesh, the plaintiff became aware of
the nature of the relationship between the 1st defendant and
Kamalaksha Poduval while applying for a legal heirship
certificate. Likewise, she became aware of the transactions
relating to the plaint schedule properties while applying for an
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encumbrance certificate. There has been no laches or delay on
her part in filing the petition for amendment, which was made
before the commencement of the trial. The defendants will
have full opportunity to meet the amended averments.
Permitting the amendment would obviate the need for a
separate suit. Sri. Gireesh submits that the only change is in
the contention regarding the extent of the plaintiff's
entitlement; from a half share to a full share in the plaint
schedule properties. The factual basis for the claim is already
available in the plaint, and the basic nature of the suit is not
altered by the proposed amendment. Only the contentions and
the reliefs sought have been modified. It is further contended
that a mere change in the reliefs sought does not amount to a
change in the nature of the suit. Sri. Gireesh relied on the
decision in Abdul Rehman and another v. Mohd. Ruldu and
others [(2012) 11 SCC 341] to contend that a change in the
nature of relief claimed shall not be considered as a change in
the nature of suit. He also relied on the decision of this Court in
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SEPC Limited v. V.S. Sunilkumar [2024 (2) KHC 457]
wherein it has been held that if the amendment sought for
ultimately serve the cause of justice and avoids further
litigation, the same should be allowed.
10. Sri. Satheesan, on the other hand, would contend
that, by the amendment proposed, there is change in
contentions as well as the reliefs. It is submitted that, in the
plaint, the averment was that the 1st defendant is the legally
wedded wife of Kamalaksha Poduval. However, the amendment
proposed states that there was no legal marriage between the
deceased 1st defendant and Kamalaksha Poduval. Further, in
the plaint, there is an admission that the additional defendants
2 to 4 are the legal heirs of the 1 st defendant. The right of the
additional defendants 2 to 4 as co-owners of the plaint schedule
properties also stands admitted. The admission as co-owners
will be taken away if the amendment petition is allowed. This
would cause injustice to the defendants. The suit was one for
partition and the reliefs sought for by way of amendment are
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for mandatory injunction, declaration and eviction. There is
substantial change in the basic nature of the suit. Sri.
Satheesan relied on the decision of the Hon'ble Supreme Court
in Life Insurance Corporation of India v. Sanjeev Builders
Private Limited and another [2022 KHC 6882: AIR 2022 SC
4256] to contend that an amendment which seeks to withdraw
any clear admission in the plaint whereby the other side loses a
valid defence and which changes the nature of the suit cannot
be allowed.
11. The question that arises for consideration in this
original petition is whether the trial court was justified in
rejecting the amendment in part on the ground that it would
change the nature and character of the suit.
12. Order VI Rule 17 of the Code of Civil Procedure, 1908
permits amendment of pleadings where it is necessary for
determining the real questions in controversy. However, it is
trite that amendments should not be allowed if they introduce a
wholly new and inconsistent cause of action, cause prejudice to
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the other side, result in withdrawal of clear admissions, or
fundamentally alter the nature of the suit. The plaintiff filed the
suit for partition of plaint schedule properties into two and to
allot her one share. Through the amendment, the plaintiff
sought to alter the relief to one of declaration, mandatory
injunction, and recovery of possession, asserting full ownership
over the plaint schedule properties. The proposed amendment
also included a change in the factual contention, withdrawing
the earlier admission regarding the legal status of the
relationship between the 1st defendant and Kamalaksha
Poduval, and disputing the right of the additional defendants as
co-owners. Thus, there is a substantial change in the relief and
cause of action, which alters the character of the suit. Contrary
to the plaintiff's contention, the proposed amendment is not a
mere alteration of the relief sought, but amounts to a
fundamental change in the nature of the suit. In Life
Insurance Corporation of India (supra), the Hon'ble
Supreme Court enumerated the cardinal principles governing
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the amendment of plaints and written statements and held that
an amendment withdrawing clear admissions which confers a
right on the other side, resulting in loss of valid defence, should
not be allowed.
This Court does not find any reason to interfere with Ext.
P5 order in exercise of the powers under Article 227 of the
Constitution of India. The original petition is, therefore,
dismissed.
Sd/-
MURALI PURUSHOTHAMAN
YKB JUDGE
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APPENDIX OF OP(C) 1043/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.42/2013
ON THE FILES OF THE SUB COURT, PAYYANNUR.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS
NO.42/2013 ON THE FILES OF THE SUB COURT,
PAYYANNUR.
EXHIBIT P3 TRUE COPY OF THE AMENDMENT PETITION
IA.884/2019 IN OS NO.42/2013 ON THE FILES
OF THE SUB COURT, PAYYANNUR.
EXHIBIT P4 TRUE COPY OF THE OBJECTION TO THE
AMENDMENT PETITION IA.884/2019 IN OS
NO.42/2013 ON THE FILES OF THE SUB COURT,
PAYYANNUR.
EXHIBIT P5 CERTIFIED COPY OF THE ORDER ISSUED BY THE
SUB-COURT, PAYYANNUR IN I.A.NO.884/2019 IN
O.S.NO.42/2013 DATED 30.1.2020.
