P L D 1952 Lahore 237 (PLP)

M. R. KAYANI, J.‑This petition for revision has. been brought by Mst. Bhag Bhari against an order of the learned Senior Subordinate Judge of Shahpur District permitting an amendment of the plaint under Order VI, rule 17, Civil P. C. The petitioner is the sole defendant in a suit for a declaration brought by the respondents. Their reply to the petition is' that the amendments allowed are justified and that in any case there is no power of revision from an order allowing amendment. Mr. Kaikaus for the petitioner having argued his case on merits, left it to the respondents' counsel to object to the competency of a revision petition. Mr. Akhlaq Hussain, before meeting the case on merits, argued his preliminary objection and said he would argue the case on merits if after hearing Mr. Kaikaus I decided that a revision petition was competent. On the preliminary point also I heard Mr. Kaikaus but before he had finished his arguments, I decided that there being no case on merits, I should not allow any more time to be wasted on the preliminary objection. I might add here that I have so far heard arguments for four days. The suit relates to the agricultural and other property left by the late Nawab Sir Allah Bakhsh who died in June, 1948, leaving behind a will in two parts. Mst. Bhag Bhari, the defendant, is the only living sister of Sir Allah Bakhsh while the three plaintiffs are the grandsons of a granduncle of Sir Allah Bakhsh. The suit is for a declaration that the plaintiffs are owners of all the land and money left by Sir Allah Bakhsh and for a permanent injunction restraining the defendant from withdrawing bank deposits. The original plaint stated that Sir Allah Bakhsh and his forefathers were governed by the rule of Customary Law in matters of succession and alienation and were deeply immersed in customary traditions. According to the customary rule of succession obtaining in the tribe of the parties, collaterals on the death of a sonless proprietor exclude sisters from succession to both ancestral and non -ancestral property. Mst. Bhag Bhari, the defendant, was married to Malik Gul Sher Khan Noon whose sister was married to Sir Feroze Khan Noon who by reason of his influence in the Legislative Assembly moved a bill known as the West Punjab Muslim Personal Law (Shariat) Application Bill on the 9th of January, 1948. It was then referred to a select committee and was ultimately passed on the 29th of January, 1948, and referred to the Governor‑General for his assent. On the 27th of March, 1948, Sir Allah Bakhsh executed his last will on the assumption that the Bill had been passed by the Assembly in its original form and included testamentary succession also. In actual fact, however, testamentary succession had been excluded from the Bill when it finally emerged from the Assembly. It further appears from the text of the will (so says the plaint) that at the time when Sir Allah Bakhsh was executing it, he was not quite sure whether the new law was applicable to his estate and if so, in what manner it would affect his rights to dispose of his estate under the will. As, however, he was determined to make a disposition of his estate, he executed the will in two parts, one or the other to take effect according as he was governed by the rule of Muslim Law or by Customary Law in the matter of regulating succession to his estate. In the first part of the will, which he executed on the assumption that there was a change in the law relating to testamentary disposition, he made various requests in favour of non‑heirs and created a religious trust for the maintenance of his family graveyard, but with regard to the rest of the estate, he expressed his helplessness to make any provision as he considered himself prohibited from doing so under the rule of Muslim Law. In the second part of the will, which he executed on the assumption that there had been no change in the law relating to testamentary dispositions, he bequeathed only Chak Allahabad in Sargodha Tahsil and a house known as Ash‑Shams on Queen's Road, Lahore, as life estate to his sister, the defendant, and reiterated the various bequests made in favour of non‑heirs in Part I. Now since the provisions of the Muslim Personal Law (Shariat) Appli cation Act of 1948 did not apply to wills and there had been no change in the authority vesting in Sir Allah Bakhsh to make disposition of his property under the rule of custom, the first part of the will did not become operative and the second part became operative, with the result that the property in suit was validly bequeathed in favour of the plaintiffs in exercise of his authority to dispose of the estate under the rule of Customary Law: Then there followed an account of the bank deposits, the steps taken by both parties to obtain them by succession certificate, the appointment of a receiver, etc. Then we come to para. 13 which says that in so far as the defendant, contrary to the rule of succession under Customary Law and the terms of the will, claims to be entitled to one half of the property in suit as the heir of the late Sir Allah Bakhsh under the rule of Muslim Personal Law and is thus denying the title of the plaintiffs to one‑half of the aforesaid property, the plaintiffs are entitled to a declaration of their ownership. In para. 14 it is stated that since in his will Sir Allah Bakhsh had conferred only a life estate on the defendant in respect of Chak Allahabad and Ash‑Shams, these properties would revert to the plaintiffs upon the death of the defendant and for that reason the plaintiffs had not asked for any relief in respect of them. Finally, there is a prayer for a declaration of ownership in respect of all the property in suit which, by para. 14, excluded Chak Allahabad and Ash‑Shams and for a permanent injunction, as already stated. In the written statement, the defendant, in reply to the allegation that Sir Allah Bakhsh was deeply immersed in. cus tomary traditions, stated that in the contrary he was an enlightened person, unblessed with such ignorant and un -Muslim prejudices. In reply to the allegation that according, to the customary rule of succession, collaterals succeed a son‑' less proprietor to the exclusion of sisters, the defendant stated that there was no such customary rule in the tribe and that custom was not the rule of decision in cases of interstate succession even before the Muslim Personal Law Application Act of 1948, unless the property involved was agricultural land, and "there is no allegation in the plaint that the property involved is such land." In reply to para. 7 of the plaint, where the two parts of the will have been discussed, she said that the will was governed by the Muslim Personal Law and not by custom. In reply to an objection in the plaint that the assent of the Governor‑General had not been given validly to the Bill, it was urged that the Act had been validly passed. In reply, to para 13 where the plaintiffs stated that the defendant claimed to be entitled to one‑half of the property in suit, the defendant stated that he was not claiming half but the entire property. She also denied that there was any custom applicable to the parties by which the plaintiffs were entitled to the property in dispute. She also referred to para. 3 in which she had stated that custom did not apply. In reply to para. 14 of the plaint, where it was stated that the will conferred only life estate on the defendant in respect of Chak Allahabad and Ash‑Shams, the defendant maintained that the will conferred upon her not a life estate but a full estate. It will be noticed from the written statement that while it does not say in clear terms that the parties are governed not by custom but by Muslim Law, it relies in several places on the Muslim Personal Law (Shariat) Application Act of‑1948 and also maintains that it was validly passed. It would, therefore, be a fair interpretation of the written statement that it is not setting up any contrary custom and that it relies upon the Muslim Personal Law as the rule of decision. Then there followed the application for permission to amend the plaint. It said that certain amendments were necessary because the plaint had been filed in a great hurry and that they were necessary for a just and proper decision of the controversy between the parties. The principal amend ment relates to the inclusion of Chak Allahabad and the house known as Ash‑Shams in a prayer for a declaration. It will be recalled that in para. 14 of the plaint these two properties had been excluded from the suit on the ground that the will con ferred on the defendant only a life estate in respect of them and that they would revert to the plaintiffs upon the death of the defendant. Para. 16 in the amended plaint which takes the place of para. 15 now states as before that these properties will revert to the plaintiffs on the defendant's death. but does not say that they have, on that account, been excluded. In para. 22 where the relief sought is detailed, these two proper ties have been included, with the result that the plaintiffs now seek a declaration that they are owners (which means present owners) of Chak Allahabad and Ash‑Shams, among other properties. Further in the same paragraph there is a prayer for an alternative relief which did not exist before, that the plaintiffs are owners of one‑half of the property in suit. That would obviously be the prayer of Muhammadan Law .were held to apply. There is also a new paragraph No. 17, on this very point, stating that even if succession to the estate were governed by Muslim Personal Law, the plaintiffs would be entitled to one‑half of the property. Then there is another new paragraph at No. 4 stating that Sir Allah Bakhsh as well as his father always looked upon the plaintiffs as their true successors and treated them, especially plaintiff No. 1, (as he was the eldest) with the greatest consideration, love and respect and that towards the end of his life Sir Allah Bakhsh increasingly associated plaintiff No. 1 in the management of his estate and household affairs. Mr. Kaikaus objected that the amendment in so far as it included Chak Allahabad and Ash‑Shams, had the effect of altering the subject‑matter of the suit and in so far as it asked for a present declaration of ownership, it involved a contradic tion of the original plaint. Next, in providing for an alternative relief the plaintiffs had altered the entire complexion of the suit because, as the plaint stood in its original form, if the plaintiffs failed to prove custom, they would not get a declara tion of ownership to any part of the property. If, however they are allowed to introduce an alternative plea, they will get a declaration in respect of one‑half, even if they failed to prove custom. The amendment introduced by para. 4 of the new plaint was not very seriously objected to, the only objection being that the object of introducing this amendment appeared to be that the will should be construed in a particular manner. I have shown that para. 13 of the original plaint proceeded on the assumption that the defendant was laying claim only to one‑half of the property in suit. That assumption was justified because the will in its first part contemplated succession accord ing to the Muslim Law by which a sister would be entitled to one‑half of the property in the case of a person without wife and children. When, however, in the written statement the defendant claimed the entire property, it became necessary for the plaintiffs to claim a relief in the alternative. This, in my opinion, was only a measure of precaution and the amendment proposed did not alter the complexion of the suit for, as I have already pointed out, the written statement could be reasonably interpreted as accepting the implications of the Muslim Personal Law (Shariat) Application Act, 1948. But even in the absence of that Act, it is obvious that if custom had not been proved to be the rule of decision, section 5 of the Punjab Laws Act would have the effect of applying Personal Law to the parties. The reply of Mr. Kaikaus to this argument was that since it was not clear whether in the absence of custom the parties would be governed by the Hanafi Law or the Shia Law it was necessary to plead not only Personal Law but also the particular branch of it. which governed the case. This does not appear to me to be a good answer to a correct interpretation of section 5 of the Punjab Laws Act, and I think it will always be open to a party, should a question arise whether he was not governed by the Hanafi Law, to make a better statement of the case under Order VI, rule

5. Next, para. 14 of the original plaint was based on the assumption that the defendant had only a life estate in Chak Allahabad and Ash‑Shams and when the defendant controvert ed that plea and also pleaded a right to the entire estate, it became necessary, if the estate was found to be governed by Muslim Law, to include these properties also. The effect of the defendant's pleadings in the written statement was that although she claimed to be governed by Muslim Law, she wanted to exclude these two properties even from the operation of that law. It was only after the written statement had been filed that they became the subject‑matter of controversy. It was, therefore, in the fitness of things that the plaint should have been allowed to be amended so as to include these properties. As regards the plaintiffs' prayer for a declaration that they are present owners even of Chak Allahabad and Ash‑Shams, it is clearly more than what they should have asked for, and Mr. Akhlaq Hussain agrees that to this extent the amended plaint may be further amended so as not to include these properties in a declaration of present ownership. The plaint should, therefore, be so amended as to. provide for a declaration of reversionary interests in these two properties. I have come to these conclusions on a consideration of the case‑law cited by Mr. Kaikaus and I propose referring to it briefly. In Ma Sawe Mya v. Maung Mo Hnaung, (A I R 1922 Privy Council 249) the plaintiff had sued for the specific performance .of a verbal agreement made with him in 1912 by the defendant for the transfer of certain land for oil wells: This agreement had superseded another agreement of 1903 and when the Court found that the verbal agreement was not proved, the plaintiff applied for an amendment of the plaint, claiming damages for breach of the contract of 1903. The Privy Council held that this should not have been allowed as it amounted to substituting one distinct cause of action for another: The observations made by their Lordships have so often been .quoted that I will reproduce them here. "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 powers of amendment muse be enjoyed and should always be liberally exercised ; but nonetheless no power has been given to enable one distinct cause of action to be substituted for another, nor to change by amendment, the subject‑matter of the suit." In Kanda v. Waghu A I R .1950 Privy Council 68 the collaterals challenged a gift by a female on the ground that the property gifted was ancestral. They failed to prove that it was ancestral. In appeal the District judge remanded the case for the trial of a further issue ; "whether the collaterals exclude the daughter's son if the property was non‑ancestral?" It was held that the District judge had framed a new case for the plaintiffs. The Privy Council was asked on behalf of the plaintiffs to allow an amendment. The prayer was disallowed on the ground that an amendment which altered the real matter in controversy was not permissible. In M. Doraiswami Iyengar v. G. Radha Krishna Chetty A I R 1938 Mad. 669 the plaintiff sued the defendant for the price of certain diamonds which he had sold to the defendant. The defendant claimed that he was merely a broker. The‑ suit was dismissed as the plaintiff had not proved his case. In appeal an amendment was allowed by which the plaintiff was enabled to claim money as principal from his agent. It was held that pleading an alternative and inconsistent case by way of an amendment was not permissible. In Wadhawa Singh and others v. Partab Singh and others A I R 1928 Lah. 933 the plaintiffs first pleaded that certain property was ancestral and after the defendants had admitted this plea, the plaintiffs asked for an amendment claiming that the property was non‑ancestral. They were not allowed to do is so as they were presenting a totally different case. In Fazal Nur v. Bibi Rani and others A I R 1930 Lah. 278 (2) the defendant in her first written statement claimed certain property on the basis of a will. In a second written statement she pleaded. that the testator was owner of only one‑half and that the other half had come to the defendant under Muhammadan Law. It was held that the pleas were inconsistent. In V. T. Elaya Pillai v. Ramasami dadaya Goundan A I R (34) 1947 Mad. 165 the suit was for a declaration that a promissory note and a lease deed had been obtained by the defendant by coercion and fraud and were consequently not binding on the plaintiff. Subsequently the plaintiff died and was substituted by his brother who sought an amendment of the plaint on the ground that even if the promissory note and the lease deed were valid, they were not binding on the estate beyond the plaintiff's lifetime as the plaintiff was only a qualified owner and the documents had been executed by him without necessity. It was held that the amendment introduces matters unconnected and even inconsistent with the original grounds. In Ghulam Muhammad and others v. Mehta Chandras Dat A I R 1927 Lah. 771 the plaintiffs originally claimed that they had acquired the title of Mst. Begam Jan by an assignment from her, that they had redeemed the land which Mst. Begam Jan had mortgaged and that they were enjoying possession of it with the defendant. In the amended plaint they stated that it was Mst. Begam Jan herself who had redeemed the land and obtained possession and that upon her marriage the plaintiffs had succeeded as reversioners. It was held that the amendment had the effect of replacing the cause of action. The general rule was that the amendment should be such as is either raised in the pleadings or is consistent with the original case. In Hardial Singh and others v. Sardarni Jaswant Kaur A I R (30) 1943 Lah. 159 the facts were that the plaintiff's husband had assigned a certain decree to the defendant and the plaintiff claimed that the decree belonged to herself and that her husband was a benamidar for her. The defendant denied this. In replication the plaintiff stated that she had a charge of Rs. 80,000 on the decree. It was held that under Order VI, rule 7 the replication should not have raised any new ground of claim or contained an allegation inconsistent with the previous pleadings of the plaintiff, that this could have been done only by way of an amendment but that while an amendment could be allowed to determine the real matter in controversy, it could not be allowed to substitute one cause of action by another or change the whole subject‑matter of the suit, particularly at a late stage. In Shibram Kairi v. Md. Masadar Ali and others A I R (34) 1947 Cal. 17 the facts were that a suit was compromised and the compromise provided that if payment was made within three months, the suit would be dismissed, but that if payment was not made within three months, the suit would be decreed. Payment was made by the defendant in time according to the Bengali calendar but late by two days according to the English calendar. The suit was, therefore, decreed. The defendant thereupon brought another suit claiming that the plaintiff had deceived him‑ into believing that payment was to be made according to the Bengali calendar. The suit and the appeal were dismissed. In second appeal there was a prayer for amend ment of the plaint so as to provide that both parties were honestly mistaken as to a vital condition in the compromise. It was held that this had the effect of transforming the entire nature of the suit and should not, therefore, be permitted. In Divi Seshacharyulu v. Divi Lakshminarayana Charyulu and others A I R (33) 1546 Mad. 105 the suit was for possession of certain property on‑the ground that there had already been a partition whereby the property in suit had been entrusted to the defendant for collection of rents. Subsequently the plaintiff wished to add to the plaint that if it was found that there had been no partition, then a partition should be effected and certain other properties should also be added. It was held that this would alter the nature and complexion of the suit, the cause of action and the subject‑matter. In Ibramsa Rowther v. Muhammad Esuf Rowther A I R 1930 Mad. 322 the plaintiff sued for redemption of certain property on the ground that he had bought it from Subbiah Pillai, a reversioner of Veera Pillai, whose widow had executed the mortgage in question. At the stage of appeal the plaintiff asked for an amendment to the effect that Subbiah Pillai derived his title from Ayya Pillai and Ramaswami. It was held that the amendment altered the cause of action. In L. A. Subramania lyer v. R. H. Hitchcock A I R 1925 Mad. 950 the publication of a libel was not denied in the written statement. Subsequently, however it was urged that the omission was due to the counsel's mistake and a prayer for amendment was made. It was held with reference to rule 17 of Order VI, Civil Procedure Code, that questions in controversy are those which arise after the written statement has been filed and do not include new questions which the defendant did not then intend to dispute. In the present case the matters in respect of which the! plaint was sought to be amended became controversial after the written statement had been filed but it cannot be said that they were not raised in the original pleadings. The plaintiffs did not ask for any immediate relief in respect of the two properties namely, Chak Allahabad and Ash‑Shams, on the assumption that they constituted a life estate under custom, and they do not ask for an immediate relief even now. (The claim for a present declaration of ownership in respect of these properties, as I have already pointed out, has not been properly worded and Mr. Akhlaq Hussain agrees that this so). Further, if custom fails, there would be no question of any life estate left, and the entire property would be governed by personal law. By the very nature of the dispute itself, there would be no change in the subject‑matter of the suit. As regards the alternative relief, the original plaint pro ceeded on the assumption that the defendant, accepting the applicability of personal law, was not laying any claim to half of the property; in which context, therefore, it was unnecessary to ask for an alternative relief. Now that she has laid a claim to the entire property, it cannot be reasonably argued that this half of the property is not the real question in controversy between the parties. It may sometimes happen that the plain tiff genuinely believes certain matters to be excluded from controversy until the defendant disillusions him, and in the' present case the plea of the defendant in the proceedings relating to the grant of a succession certificate Fateh Muhammad v. Bhag Bhari, P L D 1950 Lah. 253, at page 257 justified an assumption that she relied on personal law and that, conse quently, the dispute was confined to only half of property. Rule 17‑of Order VI permits the Court to allow a party to alter or amend his pleadings in such manner as may be just and it seems to me that it would be unjust to say that the plaint as stood originally intended to leave out half of the property altogether or to exclude Chak Allahabad and Ash‑Shams from reversionary claim. I, therefore, dismiss this petition except to the extent conceded by Mr. Akhlaq Hussain. Costs will follow the result of the entire suit. A. H. Petition dismissed.