Raju, J.:— [His Lordship after stating the facts as above, proceeded.] The appellant has how come in appeal and contends that the lower Court erred in not decreeing the plaintiff's suit. The grounds urged by him are that originally in the written statement the defendant did not contest the case of the plaintiff, that he and Satyanarayan and Ratanlal constituted a joint Hindu family which was doing business in the firm name of “Gangaram Premsukhdas,” and that in these circumstances the trial Court erred in allowing the amendment of the written statement. On the merits it is also contended that the findings of the trial Court that the plaintiff firm “Gangaram Premsukhdas” is not a joint Hindu family firm but a partnership firm is erroneous. These are the only points urged by the learned counsel for the appellant.
2. On behalf of the respondent it is contended that it is not open to the plaintiff-appellant to contend that the trial Court erred in allowing the amendment of the written statement on January 20, 1954, because the plaintiff had accepted the costs of Rs. 25, subject to the payment of which the amendment of the written statement was allowed by the Court. The respondent supports the judgment of the trial Court as regards the question whether the plaintiff firm was a joint family firm or a partnership firm…
3. The first contention is that it is not open to the appellant to contend that the amendment of the written statement allowed by the trial Court on January 20, 1954, was improperly allowed. The argument advanced is that when passing the order allowing the amendment of the plaint the trial Court ordered that the amendment be allowed subject to costs of Rs. 25 and also costs of Rs. 39 on account of the witnesses present on that date. It is urged that the amount of costs of Rs. 25 having been accepted by the appellant, it is not open to him to challenge the propriety of the order allowing amendment of the written statement. In reply it is contended that the costs were accepted under protest. Where a party accepts costs under a Judge's order which, but for the order, would not at that time have been paid, he cannot afterwards object that the order was made without jurisdiction. The party having taken something under the order cannot later impeach it, vide King v. Simmonds,1 Ranendramohan Tagore v. Keshabchandra Chanda.2 But if the costs were accepted under protest and the right to challenge the order was reserved at the time of accepting the costs, it would be open to challenge the order notwithstanding that the costs ordered at the time was accepted, vide Venkatarayudu v. Chimia.3 As observed in that case, the significance of the expression “under protest” must clearly be borne in mind. As pointed out by Langdale M.R, these words have no distinct meaning by themselves and amount to nothing unless explained by proceedings and circumstances. If, for example, costs are paid into Court and the opposing party draws them out stating that he does so under protest, these words would then be meaningless. But if at the time of accepting the costs the party accepting the costs reserves the right of filing an appeal and to challenge the order allowing the amendment, then it would be open to him to challenge the order allowing the amendment notwithstanding that he had accepted the costs ordered by the Court at the time of allowing the amendment. In the instant case there is no evidence as to whether the appellant had stated that he had reserved his right to challenge that order. On the order sheet there is a note in the margin signed by the advocate that he had received costs of Rs. 64 under protest. But the right to challenge that order was not reserved at that time. Therefore, it would not be open to the appellant plaintiff, having accepted costs, to challenge the order allowing the amendment of the written statement.
4. Further, it cannot be said that the trial Judge exercised his discretion wrongly in allowing the amendment of the written statement. Order VI, r. 2, Civil Procedure Code, provides that every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may he. The plaintiff must, therefore, state the material facts on which he relies for his claim and in the written statement the defendant must state the material facts on which he relies for his defence. Order VI, r. 13 provides that neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e.g consideration for a bill of exchange where the plaintiff sues only on the bill and not for the consideration as a substantive ground of claim). Order VIII, r. 1 provides that the defendant may present a written statement of his defence. These provisions, therefore, make a distinction between the claim of the plaintiff and the defence of the defendant. New facts relied on by the defendant must also be pleaded as provided in O. VIII, r. 2. In his written statement, therefore, the defendant must state his defence and plead new facts on which he relies. The defendant must deal specifically with the allegations contained in the plaint and deny them specifically if he does not admit the truth of such allegations of fact. This he has to do because under O. VIII, r. 5 every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted. The pleadings both by the plaintiff and by the defendant are, therefore, of two kinds. In the plaint the plaintiff must show how the plaintiff is entitled to file the suit, for instance, if the defendant's liability is to a person P who is dead, and Q claims the right to sue as heir of P, it is necessary for Q to state in the plaint that he is the heir of P. These are statements of facts but not against the defendant. In addition, he must further state the facts against the defendant and explain how the defendant is liable for the claim made in the plaint. The statements of fact which a plaintiff has to make in the plaint, therefore, include certain facts against the defendant and certain facts which are not against the defendant. If in his written statement defendant pleads that he does not contest a fact pleaded by the plaintiff which is not an allegation against defendant and of which defendant has no personal knowledge, he should not be prevented from amending such a pleading. If in his written statement defendant says that he does not wish to contest whether plaintiff Q is the heir of P, his subsequent application to amend his written statement so as to deny that Q is the heir of P should be allowed. In Laird v. Briggs . 1880 16 Ch.D 440. plaintiff claimed to be in possession of a part of the foreshore of the sea at Margate and sought to restrain defendant from removing shingle from the foreshore. Defendant claimed an easement and by his statement of defence he denied that plaintiff was or ever had been in possession of the foreshore “save subject to the rights of the defendant.” At the trial defendant asked for leave to amend the statement of defence by striking out the qualifying words, making the denial of plaintiff's possession an absolute one. Fry J. rejected the amendment holding that defendant could not be allowed to completely change his case. But his decision was reversed in appeal by Jessel M.R in Laird v. Briggs . 1881 19 Ch.D 22. who observed that the amendment should be allowed and the plaintiff should be put to show that he has a title.
5. In the instant case the plaint narrates how the defendant is liable to pay Rs. 9,368-2-3 to the firm of “Gangaram Premsukhdas.” These are allegations against the defendant. In addition, the plaint states that “Gangaram Premsukhdas” is a joint family firm and that the plaintiff Shriram is suing as manager of the joint family. These are facts which must be proved by the plaintiff. But these are not facts alleged against the defendant. Those facts do not have any bearing on the defence of the defendant. The defence of the defendant is that he did not have any dealings with the firm of “Gangaram Premsukhdas.” Whether the firm is a joint family firm or not it does not change the defence of the defendant as regards his liability. In the plaint, having claimed that the suit is by a firm, the burden rested on the plaintiff to prove that the firm is either a joint family firm or a partnership firm which has been registered. It is only by the proof of either of these two facets that the plaintiff's suit would be maintainable, whatever be his case as regards the liability of the defendant.
6. If we turn to O. VI, r. 17, Civil Procedure Code, it provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall he made as may be necessary for the purpose of determining the real question in controversy between the parties. In the case of an amendment of the plaint, an amendment to the plaint should not be granted if it would convert the suit or the claim into one of a different and inconsistent character. In the case of an amendment of the written statement, an amendment should not be granted if it would convert the defence into another of a different and inconsistent character. An amendment to the written statement can never affect the nature of the suit; it can only alter the nature of the defence. In the instant case, the defence of the defendant is that he had no dealings with the plaintiff and that he is not responsible for the dealings between the plaintiff and Shrikisan or Jainarayan. The amendment of the written statement allowed by the trial Court, whereby he denied that plaintiff was joint with his cousins, makes no change to this defence. By the amendment allowed the defendant has not been allowed to present a totally distinct, new and inconsistent defence, (vide Clark v. Wray . 1886 31 Ch.D 68, 71.). In fact, in the original written statement what was stated was merely that with reference to paras. 1(A) and 1(B) of the plaint the defendant does not contest the allegations made therein for the purpose of this suit. In order to shorten the trial the defendant stated that he does not wish to contest the allegations made in paras. 1(A) and 1(B) of the plaint which do not affect the question of the liability of the defendant. These paragraphs merely refer to the fact that plaintiff, Satyanarayan and Ratanlal formed a joint Hindu family and that they were carrying on business in the name of “Gangaram Premsukhdas.” As already observed, these facts are not facts alleged against the defendant and do not affect the defence of the defendant. If, however, the defendant makes an admission of any of the facts alleged against him, then it may not be proper to allow him to amend the written statement to deny that admission of the facts alleged against him. Paragraph 1 of the original written statement is not an admission of a fact alleged against the defendant. In fact it is not an admission. The question of the joint, family was a matter within the special knowledge of the plaintiff and a fact not within the knowledge of the defendant. Defendant should not be penalised for not contesting a fact which was not within his knowledge and the falsity of which according to him came to his knowledge later when he learnt from one Ramdhanseth that plaintiff and his brothers were separate. The allowing of the amendment in the instant case does not also spring any surprise on the plaintiff because according to his own case he had to prove that the plaintiff firm was a joint family firm and not a partnership firm. He is, therefore, not prejudiced by the order allowing the amendment of the written statement. For these reasons the trial Court did not exercise its discretion improperly in allowing the amendment of the written statement.
7. The next question relates to whether the plaintiff has succeeded in proving that he, Satyanarayan and Ratanlal formed a joint Hindu family which carried on business in the name of the joint family firm of “Gangaram Premsukhdas”… The learned trial Judge brushed aside the evidence of Jaydeo (P.W 7), Sitaram (P.W 11) and Mohanlal (P.W 12) on the ground that they merely stated their opinions and that they had no occasion to ascertain whether the plaintiff's family was joint or separate…
8. When there is a question as to whether certain persons are members of a joint family or not, it is not always necessary to adduce evidence merely of members of the joint Hindu family. The opinion of persons may also be relevant under s. 50 of the Evidence Act which provides that when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. The relationship between two brothers who are joint is much closer than the relationship of two brothers who are separated. The question of membership of a joint family which is peculiar to Hindu law has, therefore, much to do with the relationship between persons. In English families there can he no joint families such as we have among Hindus. But membership of a joint Hindu family is a type of relationship to which s. 50 of the Evidence Act can reasonably and properly apply. The opinion of witnesses, however, must be expressed by conduct as to the existence of such relationship of persons who as a member of the family or otherwise has special means of knowledge on the subject…
9. Much significance is also attached to the fact that admittedly in the books of “Gangaram Premsukhdas” there are separate khatas in the names of Shriram and Satyanarayan for sharing the profits.
10. But as observed in Charandas Haridas v. Commissioner of Income-tax, Bombay,7 if the nature of ownership is not changed, the mere fact that the coparceners decide to enjoy the produce from a particular asset in a particular manner will not amount to a partition. The members of a joint family may agree without interfering with the nature of the ownership to provide for a particular mode of enjoyment of the income, arising from that share and if the coparceners were to say that when the income comes in from a particular asset they will enjoy that income in a particular manner or share it in a particular manner, there is no partial partition, because the asset continues to remain as it was before, of the ownership of the joint Hindu family. Merely because the income of the joint family is being shared by the members of the joint Hindu family, it does not show that there was a partition in the family.
11. [The rest of the judgment is not material to this report.]
12. Appeal allowed.