IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4439 OF 2008

                              (arising out of SLP(C)No.2280 of 2007)

P. Kunjukrishna Pillai & Anr.     ……. Appellants

Vs.

D. Sreekantan Nair & Ors. …… Respondents  

O R D E R

Leave granted. Heard the learned counsel.  

2. The  first  respondent  married  one  Omana  on  02.9.1985.  The  said

Omana  died  issueless  on  19.12.1987.  Omana’s  father  had  gifted  suit

schedule item Nos.1 to 4, 6 and 7 to her, during her life time in 1966 and

1974. The first appellant, brother of Omana, had executed a deed of gift in

her favour, in regard to the suit schedule item no.5 on 31.8.1985.  

3. After the death of Omana, the first respondent filed a suit (OS No.52

of 1990) for a declaration that he is the absolute owner of the suit schedule

properties  and  for  possession.  In  the  said  suit,  Omana’s  brother  (first

appellant),  her  four  sisters  and  sister-in-law  (second  appellant)  were

impleaded as defendants 1 to 6. He contended that the parties being Hindu

Nairs, were governed by section 17 of the Hindu Succession Act, 1956 in

the  matter  of  succession;  and  as  per  the  said  section,  in  the  absence  of

children, as husband he alone was entitled to succeed to her assets.  

4. The defence was that there was no valid marriage; that marriage was

not consummated; and that first respondent (plaintiff) had deserted Omana

immediately after the marriage. It was contended that as first Respondent

was  not  the  ‘husband’,  he  was  not  entitled  to  succeed  to  her  assets.

Alternatively,  it  was  contended  that  even  if  first  respondent  was  the

husband,  the  succession  was  governed  by section  15(2)(a)  of  the  Hindu

Succession Act, 1956 (‘Act’ for short) as the suit properties were inherited

from her father.  

5. The trial court decreed the suit holding that section 17 of the Act will

apply. The contention  of  defendants  that  section  15(2)(a)  will  apply was

rejected as none of the suit properties were inherited by deceased Omana

from her parents. The said judgment dated 10.4.1995 was challenged by the

2

appellants herein (brother and sister-in-law of Omana) in AS No.41 of 1996

before the High Court of Kerala. In the said appeal, the appellants filed an

application under Order 6 Rule 17 CPC  for amendment of their  written

statement  and  another  application  under  Order  41  Rule  27  CPC  for

additional evidence. By the amendment application the appellants wanted to

plead that the gift  of suit  schedule item No. 5 made by first  appellant  in

favour of his sister Omana was neither accepted by her nor acted upon by

the parties, and that the first appellant had continued in possession as owner

and has been paying the taxes and, therefore, the gift was null and void and

had not come into effect. The High Court held that as the application for

amendment was not filed before the trial was commenced, and as there was

a delay of about six years, the application deserved to be rejected. It also

rejected the application under Order 41 Rule 27 CPC as it was not the case

of the appellant that the documents had come to his knowledge only after

trial had commenced. It also dismissed the appeal confirming the findings

and  decision  of  the  trial  court.  The  said  judgment  is  challenged  in  this

appeal by special leave.

6. At the outset, we find that in so far as suit schedule item nos. 1 to 4, 6

and  7  are  concerned,  no  ground  is  made  out  for  interfering  with  the

3

judgment of the trial court as confirmed by the High Court. In fact, learned

counsel for Appellants fairly submitted that the attack is only with reference

to suit schedule item no.5 in regard to which first appellant (first defendant)

had executed the gift deed.  

7. We, however,  find  that  the High Court  ought  to  have allowed  the

applications under Order 6 Rule 17 and Order 41 Rule 27 CPC. While it is

true  that  the  amendment  application  was  not  filed  before  the  trial

commenced, that by itself cannot be a ground for rejecting the application.

The first defendant was not attempting to put forth any ground inconsistent

with what was stated in the written statement. He was only attempting to

introduce  an  additional  ground  in  so  far  as  suit  schedule  item  no.5  is

concerned. On the facts and circumstances of this case, we are satisfied that

the  said  amendment  application  requires  to  be  allowed,  and,  as  a

consequence,  application under Order 41 Rule 27 for additional  evidence

has to be allowed.  

8. We accordingly allow this appeal as follows :

4

(i) The judgments and decrees of the trial court and the High Court are upheld in regard to suit schedule items 1, 2, 3, 4, 6 and 7 (which were gifted by Omana’s father in her favour).  

(ii) Applications under Order 6 Rule 17 and Order 41 Rule 27 CPC are allowed. The judgments and decrees of the trial court and the High Court, in so far as  suit schedule item no.5, are set aside and the matter is remitted to the trial court to give an opportunity to the parties to file amended pleadings and for the court to frame additional issues and take additional evidence in so far as suit schedule item no.5 and decide the matter in accordance with law.  

(iii) Parties to bear their respective costs.  

…………………………….J [R. V. Raveendran]

……………………………J [Lokeshwar Singh Panta]

New Delhi; July 14, 2008.

5