Only Trial can decide if Property is Ancestral or Self Acquired, Read HC Order

The Karnataka High Court has held only a full-fledged trial can ascertain whether a property is ancestral or self-acquired and therefore application for amendment of the plaint at the pre-trial stage to include such properties, is permissible.

The single-judge bench of Justice Sachin Shankar Magadum in this view rejected the defendant's challenge to trial court order permitting plaintiff's petition under Order VI, Rule 17 read with Section 151 CPC, to incorporate additional properties and pleadings in that regard.

The Counsel for petitioner-defendent contended that amendment application was tainted with malafides. Placing reliance on M/S. Revajeetu Builders & Developers Vs. M/S. Narayanaswamy & Sons & Ors., 2009 Latest Caselaw 836 SC, he further contended that that the trial Court while dealing with amendment application is under bounden duty to find out whether the amendment application is tainted with malafides and therefore, if at this juncture, the respondentplaintiff is permitted to bring in the self acquired properties of the petitioner, the petitioner would be put to irreparable loss.

The Court noted that the contrary submissions made by the plaintiffs and defendant are to be tested only by way of a full fledged trial. 

"Though plaintiffs claim that the properties now sought to be included are also joint family ancestral properties, the said statement has to be corroborated and substantiated during trial. Initial burden is on the plaintiffs. Once the said initial burden is discharged, the onus would shift on the petitioner-defendant."

For the sake of fair trial resolve of dispurte, the Court opined that amendment of plaint is neccessary.

"It is equally incumbent on the part of the defendant to lead rebuttal evidence to discharge his burden and establish that the properties covered under the amendment application are his self acquired properties. Without having recourse to this adjudication process, neither these properties can be held to be ancestral properties nor self acquired properties. Therefore, the amendment of plaint is absolutely necessary," the Court said.

Remarking that the learned Judge, though has not elaborately discussed, but has rightly allowed the application thereby relegating both the parties to trial.

"Merely because the proposed amendment may cause some inconvenience to the petitioner-defendant, on an assumption that it is his self acquired properties cannot be a ground to reject the amendment application. The judgment cited by the learned counsel for the petitioner is not applicable to the present case on hand."

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