IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 28TH DAY OF JULY, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH WRIT PETITION NO.49587 OF 2012(GM-CPC) BETWEEN:
1. B.R.VISHWAS S/O LATE B.V.RAJASHEKAR REDDY, MAJOR, NO.1883, 10TH MAIN, BSK II STAGE, BENGALURU – 560 070.
2. SMT.CHANDRAKANTHA W/O LATE B.V.PRABHAKAR REDDY, MAJOR, VIA SARJAPURA, ANEKAL TALUK, DOMMASANDRA, BENGALURU – 562 175.
3. MISS.CHAITRA D/O SMT.CHANDRAKANTHA MAJOR, VIA SARJAPURA, ANEKAL TALUK, DOMMASANDRA, BENGALURU – 562 175.
4. SRI B.V.GOPALA REDDY S/O SRI VENKATASWAMY REDDY, MAJOR, NO.491/40, 39TH CROSS, I MAIN, 8TH BLOCK, JAYANAGAR, BENGALURU – 560 082.
5. SRI B.V.SADANANDA REDDY S/O SRI M.VENKATASWAMY REDDY, MAJOR, NO.801, 9TH MAIN, III BLOCK, KORAMANGALA, BENGALURU – 560 035.
... PETITIONERS (BY SRI S.V.GIRIDHAR, ADVOCATE) AND:
1. SMT.NAGARATHNAMMA D/O LATE SRI B.MUNIREDDY, W/O LATE M.MUNISWAMY, AGED ABOUT 81 YEARS 2. SMT.GOWRAMMA W/O LATE SRI RAMAKRISHNA REDDY, D/O SMT.NAGARATHNAMMA, AGED ABOUT 56 YEARS, 3. SRI NAGARAJA REDDY S/O SMT.NAGARATHNAMMA, AGED ABOUT 62 YEARS 4. SRI M.SURESH CHANDRA BABU S/O SMT.NAGARATHNAMMA, AGED ABOUT 60 YEARS 5. SRI M.SHASHIDHAR BABU S/O SMT.NAGARATHNAMMA, AGED ABOUT 56 YEARS 6. SRI M.VIJAYA KUMAR REDDY S/O SMT.NAGARATHNAMMA, AGED ABOUT 52 YEARS RESPONDENTS 1 TO 6 ARE ALL RESIDENTS OF NO.9/12, 1ST CROSS, VITTAL NAGAR, CHAMARAJAPET, BENGALURU – 560 018. ... RESPONDENTS (BY SRI ARAVIND M.NEGLUR, ADVOCATE FOR R1 TO R6- ABSENT) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND QUASH THE ORDER IMPUGNED DATED 29.8.2011 PASSED BY THE XVIII ADDL. CITY CIVIL JUDGE, BENGALURU CITY, BENGALURU IN O.S.NO.6871 OF 2007 AS AT ANNEXURE-G AND CONSEQUENTLY DISMISS THE APPLICATION OF THE R1 UNDER ORDER VI RULE 17.
THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The first plaintiff claiming to be the daughter and the other plaintiffs claiming to be the children of Sri B.Munireddy filed a suit for partition of the plaintiffs half share in Item No. 1 and 1/4th share in Item No.2 and consequential reliefs. During the pendency of the suit an application was filed under Order 6 Rule 17 read with Section 151 of CPC seeking amendment of the plaint, in terms whereof, certain paragraphs were sought to be added. By the impugned order, the application was allowed. Hence, the present petition by the defendants.
2. The learned counsel for the petitioners contends that a plain reading of the averments would indicate that the partition has been effected between the father of the 1st plaintiff and the father of the defendants which include their father B.Muniswamy. In the year 1974 Muniswamy died. That after his death, the plaintiffs are entitled to his share. However, in terms of the present application for amendment, the plaintiffs claim a right under the Hindu Succession Act by contending that the family partition is liable to be reopened. Further the prayer is for partition of the plaintiffs 50% share in Item No.3 of the plaint schedule properties. He contends that the trial court committed an error in allowing the same. So far as the plea regarding the applicability of the Hindu Succession Act is concerned, the same would be determined in accordance with law. His grievance is to the challenge made by the plaintiffs to the partition deed dated 28-6-1974. That having accepted to its validity in the plaint averments, in terms of the amendment a contrary plea is sought to be taken by the plaintiffs. The same is impermissible.
3. The counsel for the respondents is absent.
4. Heard the learned counsel for the petitioners.
The averments would indicate that the family partition was effected on 28-6-1974. Thereafter, Muniswamy died. Therefore, the property that remained with Muniswamy would alone be liable to be partitioned between his children namely, the 1st respondent and the 1st defendant and their respective legal representatives. This is the plaintiffs claim in the plaint filed by them. However, in terms of the application for amendment, a third item is sought to be added on, on the ground that the same has been left out. This too is being contested by the defendants on the ground that a portion of the same constitutes the property in the partition deed.
5. However, I’am of the view that, the same requires to be thrashed out at the trial Court. Whether the property is part of the partition deed would be determined by the trial court. Therefore, there would not be any impediment to allow the said prayer.
6. Para 16-B is to claim a right equal to that of a coparcener. That too is a question of law which the trial Court would necessarily decide.
7. Para-16-C is to the effect of re-opening the partition and challenging the partition deed dated 28-6-1974. In terms whereof, the same stands diametrically opposite to the plea of the plaintiffs. Having accepted the partition deed, the entire plaint is based on the plea that subsequent to the partition deed, the properties that have been left out, the plaintiffs would have a share in the same. Therefore, such an amendment seeking a contrary stand by the plaintiffs therefore cannot be allowed.
8. Para 16-D is to the effect of claiming 50% share in Item No.3. As held herein above, the same is related to the relief sought for and as pleaded in prayer 16A. That too would be a consideration at the trial of the suit.
9. However, the contention of the petitioners- defendants is that other Items of property in Item No.3 are properties purchased subsequent to the partition. This is also a question to be determined at the stage of trial. Under these circumstances, I’am of the view that the reasoning assigned by the trial court cannot be sustained in full.
Consequently, the petition is partly allowed only to the extent of rejecting the application with reference to para 16-C. The order of the trial court is modified. The impugned order is sustained so far as the other amendments are concerned.
Rule made absolute.
SD/- JUDGE Rsk/-