IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.11646/2019(GM-CPC) BETWEEN:
MRS.G. NARMADA PAI @ NARAMADA P PRABHU AGED ABOUT 67 YEARS, W/O P K PRABHU NO.5 LAXMI NIKETHAN NEAR PRAGATHI HOSPITAL GANESH GOWDES ROAD, MULUND (W) MUMBAI-80. ... PETITIONER (BY SRI CHANDRANATH ARIGA K., ADVOCATE) AND:
1. MRS. VINAYA PAI AGED ABOUT 71 YEARS W/O LATE DR. VASANTH PAI 2. MR. SACHIN DEV PAI AGED ABOUT 49 YEARS, 3. MR. NETHIN DEV PAI AGED ABOUT 44 YEARS, 4. MR. ASHWIN DEV PAI, AGED ABOUT 42 YEARS, RESPONDENTS 2 TO 4 ARE THE CHILDREN OF LATE DR. VASANTH PAI, AND ARE AT VASANTHA NILAYA, OPP. KALIKAMBA TEMPLE, BEARIKOTEKAR, MANGALORE TALUK, D.K. ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.2.2019 PASSED BY THE ITINERATE SENIOR CIVIL JUDGE AND J.M.F.C. MOODABIDRI DISMISSING I.A.NO.29 IN O.S.NO.127/1999 (ANNEXURE-A);
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Defendant No.8 has filed the present writ petition against the order dated 23.2.2019 made on I.A.29 in O.S.No.127/1999 rejecting the application filed under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure by her to amend the written statement.
2. The plaintiffs filed suit for partition and separate possession and mesne profits from the year 1995-96 onwards contending that the suit schedule properties are the joint family properties of plaintiffs and defendants and hence, plaintiffs are also entitled to their share.
3. Defendant No.8-petitioner alone filed her written statement denying the entire plaint averments and contended that the plaintiffs and defendants are not the members of the joint family and there are not in constructive possession of the suit schedule properties as alleged in the plaint. It was also denied that Defendant No.9 was in possession of the property and utilizing the income of the suit schedule property. The plaintiffs approached defendant No.6 claiming partition and accordingly, defendant No.6 informed by a letter dated 8.5.1998 that she wants to comply with the demand of plaintiffs and the annual income of the property is Rs.50,000/- by way of rents and usufructs, etc. Hence there was no cause of action for the suit and sought for dismissal of the suit.
4. When the matter was posted for evidence, at that stage, defendant No.8 filed an application under Order VI Rule 17 and Section 151 of the Code of Civil Procedure seeking permission to amend the written statement by adding para 4(a) after para 4 to the effect that “the Will dated 18.11.1998 executed by Smt. Shantha G. Pai has been lost and could not be traced inspite of repeated search by the defendant and her children. The Will could not be traced on and after her death, the registration of the copy of the Will was obtained from the office of the Sub-Registrar, Bangalore. It is submitted that even if Late Smt. Shantha G. Pai has not executed the Will or if the said Will is not proved, her children have succeeded to the suit property under Section 15 of the Indian Succession Act being the natural heirs. Therefore, the suit property belongs to the defendants and the plaintiffs have no manner of right or share in the suit property. The suit is therefore liable to be dismissed.”
5. The trial Court considering the application and objections by the impugned order dated 23.2.2019 rejected the application on the ground that if the application is allowed there is every possibility of change of character of the suit and the proposed amendment is based on the copy of the Will produced by defendant No.8, the proposed amendment is not maintainable and accordingly, rejected the application.
6. Having heard the learned Counsel for the petitioners, it is an undisputed fact that the plaintiffs filed suit for partition and separate possession in respect of the suit schedule properties and defendant No.8 has already filed written statement taking a specific contention that the suit is not maintainable. Hence, it is for the plaintiffs to prove that the suit schedule properties are the joint family properties of plaintiffs and defendants and they are entitled for partition. The proposed amendment is a legal question. In view of the provisions of Section 15 of the Hindu Succession Act, it is for the parties to prove and there is no need to file application for amendment and ultimately, it is for the defendant to show that they are the children of Smt. Shantha G. Pai and they have succeeded to the suit schedule properties under Section 15 of the Hindu Succession Act. Hence, it is for them to prove on the basis of oral and documentary evidence to be adduced and produced by both parties and the legal point can be urged even without any amendment.
7. In view of the above, the impugned order passed by the trial Court is just and proper. The petitioners have not made out any ground to interfere with the same in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is disposed of.
Sd/- Judge Nsu/-