K.S.M.M. Mohamed Umar Sherif And Others vs Hajiyani M. Sarfunnisa Ashraf And Others

Dr R.N.Manjula, J

A.No.4133 of 2022 has been filed by the applicants / plaintiffs to amend the plaint.

A.No.299 of 2025 has been filed by the applicant / first defendant to reject the plaint by stating that the plaintiffs do not have any cause of action.

The suit has been filed for seeking the relief of declaration for three settlement deeds dated 06.10.2005 and 07.11.2006 as null and void along with the relief of declaration that the plaintiffs are entitled to 2/15 share of the suit properties and for seeking a preliminary decree for partition of the said share of 2/15 in the suit properties.

The suit properties were originally owned by one Sheriffamma who is the mother-in-law of the first plaintiff. The plaintiffs 2 to 4 are the children of the first plaintiff. K.S.M.Mohamed Ashraf who is the deceased husband of the first plaintiff, is one of the sons of Sheriffamma. He pre-deceased Sheriffamma. The defendants 1 and 2 and 5 to 9 are the other children of Sheriffamma. The husband of the first plaintiff K.S.M.Mohamed Ashraf had died in a road accident on 10.08.1995, when the first plaintiff was aged 32 years and her children, the plaintiffs 2 to 4 were at their tender age. Her father-in-law also passed away on 11.11.2000 due to cancer. By considering the pliant situation of the plaintiffs, the first plaintiff's mother-in-law Sheriffamma had been considerate and affectionate to the plaintiffs and she also promised that one of the residential apartment situated in item No.1 of the property and a vacant plot would be given to the first plaintiff and her children. This was assured by her in the presence of her husband. The above act of benevolence was done by her only due to the affection she had with her deceased son and to give comfort to the plaintiffs.

Sheriffamma died in the year 2007 and during her last days, she was suffering from Alzheimer's disease. By taking advantage of the above condition, the defendants 1 to 4 had influenced Sheriffamma to execute a settlement deed in favour of the first defendant in respect of the 1st item. The defendants 2 and 4 have also got settlement deeds in their favour in respect of the second item of the suit property by adopting the same tactics. The plaintiffs' family did not get any property despite Sheriffamma was considerate and volunteered to give the suit properties in favour of the plaintiffs. The claim of the plaintiffs is that the settlement deeds were obtained from Sheriffamma when she was not in a sound disposing state of mind. Therefore, the plaintiffs filed a suit for the relief of declaration and preliminary decree for partition.

During the pendency of this suit, the plaintiffs have also filed an amendment application in A.No.4133 of 2022 to amend the plaint. The proposed amendment was sought to be brought to amend the plaint by including the pleadings that Sheriffamma has spelt out an oral Wasiyath that the plaintiffs being the legal heirs of the predeceased son K.S.M.Mohamed Ashraf, will be allotted with due share which have been inherited by the first plaintiff's husband, if he was alive. The defendants filed their counter and objected the prayer for amendment. It is stated by the defendants that the amendment is sought to be made at a belated stage and the plaintiffs have introduced a new cause of action just to delay the proceedings. It is also stated that from the mohammadan law that the legal heirs of the predeceased son are not entitled to any share in the property of the deceased.

The defendants have taken out the same ground to file an application in A.No.299 of 2025 to reject the plaint. It is the contention of the first defendant that as per mohammadan law, the legal heirs of the predeceased son would be excluded from inheritance of the properties of the parents of the deceased.

In the judgment rendered by the Privy Council in the year 1905 in Moolla Cassim Bin Moolla Ahmed Vs. Moolla Abdul Rahim and Others, reported in 1905 SCC Online PC 17, it is held that if any of the children of a man dies before the opening of the succession to his estate, leaving behind his children, the grand children of the deceased are excluded from inheritance. The relevant paragraph of the above judgment on this aspect is extracted as below:

“It is a well-known principle of Mahomedan law that if any of the children of a man die before the opening of the succession to his estate, leaving children behind, these grandchildren are entirely excluded from the inheritance by their uncles and aunts. In the present case, Moolla Cassim, the only son of Moolla Ahmed, claims a share in his grandfather's estate, in right of his father, under Moolla Ismail's award.”

The same principle has been reiterated in the subsequent judgment of the Hon'ble Supreme Court in the case of Sulthan Said Ibrahim Vs. Prakasam and Others, reported in 2025 SCC Online SC 1218. This judgment also makes a reference about the earlier judgment cited supra. The relevant paragraphs are extracted as under:

“59. In lieu of the aforesaid discussion, although it is immaterial for us to examine the contention of the appellant that mohammadan law does not accord the son of a predeceased son the status of a legal heir of the Page 32 of 38 SLP (C) No. 4307 of 2022 grandfather by virtue of inapplicability of the doctrine of representation, yet we may refer to the observations of the Privy Council in the case of Moolla Cassim bin Moolla Ahmed v. Moolla Abdul Rahim reported in 1905 SCC OnLine PC 17 wherein it was observed thus:

“It is a well-known principle of Mahomedan law that if any of the children of a man die before the opening of the succession to his estate, leaving children behind, these grandchildren are entirely excluded from the inheritance by their uncles and aunts. […]”

Thus, had the appellant taken up the objection at the right stage of the proceedings, it would have been open to the court to look into the said objection under Order XXII Rule 5 and disallow his impleadment as a legal heir of the original defendant. However, having failed to act at the appropriate stage, it was not open to the appellant to subsequently approach the court with an application under Order I Rule 10. Further, as we shall shortly discuss, the appellant having failed to raise the plea of his tenancy and possession over the suit property, the rejection of his application under Order I Rule 10 has no material effect on the ultimate outcome of the lis.”

It is the claim of the defendants that the plaintiffs are not even the legal heirs of the deceased Sheriffamma and hence, the suit itself has been filed without any cause of action. But the case of the plaintiffs is that Sheriffamma has given an oral gift even during her life time and according to which, the plaintiffs are entitled to the share in the suit property. However, that contention was objected by the defendants by saying that such a plea has been attempted to be introduced afresh by way of amending the plaint.

No doubt in the particulars of amendment, the plaintiffs have specifically pleaded about the oral Wasiyath executed by the deceased in the presence of her husband by taking into consideration of the death of her son and the pliant position of the plaintiffs. Even though the said statement has been made in the plaint, it is not exhaustive. The defendants submitted that the plea about oral Wasiyath is a new introduction and the plaintiffs have raised the same only by knowing pretty well that they are not the legal heirs of the deceased Sheriffamma and that their case will fail on that score.

The legal position of inheritance as per mohammadan law can be one of the defence of the plaintiffs while contesting the suit for various reliefs claimed by the plaintiffs. Even though the plaintiffs have raised the plea about Wasiyath in the particulars of amendment, there are pleadings in the plaint on the contention that the plaintiffs have been consoled by her mother-in-law Sheriffamma, in view of the untimely death of the first plaintiff's husband.

The oral gift is not alien to mohammadan law. As the plaintiffs have made a ground submission with regard to the involvement of Sheriffamma on the lives of the plaintiffs consequent to the death of her son K.S.M.Mohamed Ashraf, the amendment sought to be made by the plaintiff cannot altogether be a new plea. Even though the plaint has been filed in the year 2008 and it is pending for several years, none of the defendants has raised the contention that the plaintiffs are not the legal heirs of the deceased Sheriffamma and claimed to reject the plaint.

Though it is correct for the defendants to state that the position of law can be taken at any time, it should also be seen that the plaintiffs have constructed the plaint not only on the basis of intestate succession of the deceased, but also about the oral arrangement or assurance given by the deceased Sheriffamma. During the course of the trial, the facts about such contentions can be substantiated and proved.

As per Order VII Rule 11 of C.P.C., the plaint can be rejected only in the following circumstances. For a better clarity, Order VII Rule 11 is extracted as under:

“11. Rejection of plaint.— The plaint shall be rejected in the following cases:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule

9;

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]”

Only when the plaint does not disclose any cause of action and barred by limitation or not properly valued and required Court Fee is not paid, the Court is bound to reject the plaint. It may be in the appreciation of the defendants that the cause of action pleaded by the plaintiffs may not be correct or appropriate, but, that cannot be the reason to reject the plaint, unless it is shown before the Court that the plaintiffs have created the cause of action just by way of intelligent drafting of the plaint.

The whole object of exercising the powers under Order VII Rule 11 to reject the plaint is to ensure that no meaningless litigation should be permitted to occupy both the space and time of the Court. At the same time, no litigant should have an uncertainty or a fear that the case filed by him will be rejected on the slightest objection made by the defendants about its maintainability. Unless it is apparent that the plaintiff would just waste the time of the Court and it is a fancy plaint filed before the Court just to take chances, the Court shall not be inclined to reject the plaint.

The Court is not bound to advert into the merits of the averments made in the plaint at the threshold stage itself. The averments made in the plaint has to be taken in entirety along with the documents relied on by the plaintiffs for examining a prima facie case for maintainability. The plaint as such has to be taken up for consideration without supplying or subtracting any details in order to appreciate the right to sue and the relative cause of action.

Even though it is not unfair on the part of the Court to exercise powers under Order VII Rule 11 at any stage of the suit proceedings, what should be kept in mind is about the examination of the prima facie on the face of the case basing on the averments made in the plaint and not by making any roving enquiry, which usually has to be done at the time of the trial.

The Hon'ble Supreme Court has thrown more light on the recent judgment held in the case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) THR LRS & Ors, reported in AIR 2020 SC 3310, about the cause of action and the illusion of the cause of action. Paragraph No.13 of the above judgment is extracted as below:

“13. “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

In Swamy Atmanand v. Sri Ramakrishna Tapovanam this Court held :

“24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded” (emphasis supplied) In T. Arivandandam v. T.V. Satyapal & Anr. this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : -

“5. …The learned Munsiff must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R.

11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has 8 (2005) 10 SCC 51.

(1977) 4 SCC 467.

created the illusion of a cause of action, nip it in the bud at the first hearing …” (emphasis supplied) Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.

If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage.

The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.”

By applying the above principles in the instant case, it can be examined whether the plaintiffs have cause of action for filing the suit. As stated already, the plaintiffs have already pleaded in the plaint about the compassionate action of the first plaintiff's mother-in-law Sheriffamma. The first plaintiff has pleaded that after the death of her husband, Sheriffamma was kind enough to offer reassurance to the first plaintiff and her children by way of offering security in the form of properties for their better future.

In fact, the plaint was found to be fit for entertaining it on the basis of the above cause of action and not merely on the basis of any claim that the plaintiffs are entitled to the share in the suit property as the legal heirs of late.Sheriffamma. As there are lot of facts have to be proved before invoking the appreciation of the position of law, I feel it is appropriate to allow the plaintiffs to go for trial.

So far as the amendment is concerned, it is about adding more clarity to what has already been stated in the plaint. The pleadings in respect of oral Wasiyath cannot be seen as totally new or unconnected to the plaintiffs' earlier submissions made in the plaint. The amendment is required for effective and proper adjudication of the issues between the parties and the amendment is not mere a stage management to keep the suit alive which is otherwise fit for rejection.

As regards the rules of the amendment, it is needless to state that the application for amendment can be filed at any stage so long as it is justified in the given circumstances and which does not change the nature of the case. In this regard, it is relevant to refer the judgment of the Hon'ble Supreme Court held in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited, Civil Appeal No.5909 of 2022 dated 01.09.2022. The relevant paragraph is extracted hereunder:

“70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview.

The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)”

On perusal of the particulars of amendment now sought to be made by the plaintiffs, is only consequent to the earlier averments made in the plaint with regard to the first plaintiff's mother-in-law Sheriffamma's gestures of kindness and reassurance. As the first plaintiff has already pleaded that her mother-in-law has assured to give certain properties and there are allegations as to the sound disposing state of mind of Sheriffamma while executing the settlement deeds in favour of some of the defendants, I feel the amendment cannot be viewed as an addition which changes the entire cause of action and introduces a new case. As the plaintiffs have attempted only to give more clarity to their earlier submissions, I feel it is appropriate to allow the application for amending the plaint.

In the result, the Application filed in A.No.4133 of 2022 to amend the plaint is allowed and the Application filed in A.No.299 of 2025 to reject the plaint is dismissed.