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2021 (6) TMI 553 - MADRAS HIGH COURTBenami transactions - declaration to declare the suit schedule properties as properties of the plaintiff - Firm/Company file a suit for partition on behalf of one of the partners to claim his share - plaintiff is claiming the rights by virtue of amending the pleadings - HELD THAT:- The Court, ultimately is going to decide the right of the parties to the suit, in the 27 items of the suit schedule property even without amending and subsequent to the amendment also, the Court will decide the same. As long as when the Court is not going to decide the right against any of the properties not mentioned in the suit schedule, it would not amount to bringing a new case to change the character, nature and basic structure. In the present case, no such right is going to be decided against the properties which are not mentioned in the original suit schedule properties before the amendment. Therefore, the amendment of the pleadings is not going to change the character, nature and basic structure of the suit. Even this Court is of the view that the right claimed by the plaintiff in the suit is not proper. Subsequent to the amendment of pleadings only, it would be proper. Initially, one of the partners viz., P.Sivanantham claimed that he is entitled for 22.5% shares in the Firm and therefore the said share should come to the Company. This way of laying the claim is not proper. This Court is of the considered view that a Firm/Company cannot file a suit for partition on behalf of one of the partners to claim his share and thereafter to treat it as firm/company property. Firm/Company can file suit to determine its right in the properties but not the right of partner in the firm's/company's property. The partner's right in the firm/company will accrue only in the event of dissolution of the Firm or he will get dividend for his share in the Company in the event of dissolution of the Company. No such situation that arose in the present case. Thus, the suit was originally not filed in a proper manner. Now, by virtue of amendment, the plaintiff is not going to introduce any new plea, but by ignorance, the suit was filed and same has to be corrected legally. Further, without amendment, the right of the parties cannot be adjudicated in a proper manner and allowing this amendment will no way prejudice the right of any of the parties of the suit. Therefore, this Court feel that the amendment in the pleadings is necessary to adjudicate the rights of the parties. The amendment sought for in the relief is only for declaration to declare the suit schedule properties as properties of the plaintiff. This is the consequential relief. This Court does not find any irregularity in allowing this relief and with the amendment of pleading and the prayer, the Court can render complete justice to the parties. Accordingly, the amendment is necessary. When question of limitation was raised before the Court below, the Court below, instead of considering the limitation on merit, it has simply rejected the plea of the revision petitioners stating that the plea of limitation would be considered at the time of trial. As far as this finding is concerned, this Court does not find any error. Benami Transactions (Prohibition) Act, 1988 will not apply. As far as this finding is concerned, this Court is not agreeing with the finding of the Court below. In an amendment petition, the Court below cannot come to the conclusion whether Benami Transactions (Prohibition) Act, 1988 will apply or not without allowing the parties to let in evidence. Therefore, the finding of the Court below with respect to the claim of the plaintiff would not be affected in view of Section 4(9)(b)(2) of amended Benami Transactions (Prohibition) Act,1988 is set aside and the same can be decided by the trial Court by framing appropriate issue and decide the same in accordance with law after allowing the parties to let in evidence. Therefore, the finding of the Court below on the aspect of non- application of Benami Transactions (Prohibition) Act,1988, alone is set aside.
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