Karnataka High Court

Smt.Suguna vs Sri.Munikrishnappa on 9 December, 2021

Bench: B.M.Shyam Prasad

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 9TH DAY OF DECEMBER 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

        WRIT PETITION NO.16036/2021 (GM-CPC)


BETWEEN :

1.      SMT.SUGUNA
        AGED ABOUT 50 YEARS,
        W/O K.N.RAMCHANDRA,
        R/AT NO.101, GALDEN HOME
        7TH CROSS, SADANANDA NAGAR,
        N.G.E.F. BANGALORE-560038

2.      K N RAMCHANDRA
        AGED ABOUT 68 YEARS
        S/O. LATE K N NARAYANAPPA
        R/A NO.101, GALDEN HOME
        7TH CROSS, SADANANDA NAGAR
        N.G.E.F, BENGALURU-560038
                                  .... PETITIONERS

(BY SMT. B V VIDYULATHA, ADVOCATE)
AND :

1.      SRI.MUNIKRISHNAPPA
        S/O LATE K.N.NARAYANAPPA
        AGED ABOUT 67 YEARS,
        R/AT NO.97, 8TH CROSS,
        UDAYA NAGAR,
        NEAR TIN FACTORY
        BANGALORE-560016.
                            2



     SRI.K.N.NARAYANAPPA
     SINCE DEAD BY LRS,

2.   SRI K M NARASHIMHA MURTHY
     S/O LATE K.N.NARAYANAPPA
     AGED ABOUT 65 YEARS,
     R/AT NO.121, 8TH BLOCK,
     KORAMANGALA VILLAGE,
     BANGALORE-560095.

3.   SMT.LAKSHMAMMA
     W/O SRI GOVINDAPPA
     AGED ABOUT 60 YEARS,
     R/AT NO.88, BEEMANAKUPPE
     RAMOHALLI POST, KENGERI HOBLI,
     BANGALORE NORTH TALUK-560062.

4.   SMT.NAGARATHNAMMA
     W/O LATE VENKATESHAPPA
     AGED ABOUT 55 YEARS,
     R/AT NO.218, 12TH CROSS,
     BANNERGHATTA LAYOUT,
     KOTTIGERE POST,
     BANNERGHATTA TALUK
     BANGALORE-560083.
                                ... RESPONDENTS

(BY SRI. V.B.SHIVAKUMAR, ADVOCATE FOR R1;
    SRI. M.S.VARADARAJAN, ADVOCATE FOR R2;
    NOTICE TO R3 AND R4 ARE WAIVED
    V/O. DATED 14.09.2021)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DTD.05.08.2021 ON IA NO.16 FILED BY THE
DEFENDANT        NO.2/RESPONDENT       NO.3     IN
O.S.NO.9068/2006 ON THE FILE OF XVIII ADDITIONAL
CITY CIVIL JUDGE, BANGALORE HEREIN AT ANNEXURE-F
TO THE W.P. AND ETC.
                              3



     THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:

                        ORDER

The petitioners, who are the third to sixth

defendants in O.S.No.9068/2006 on the file of the XVIII

Additional City Civil and Sessions Judge, Bengaluru (for

short, 'the civil Court'), have impugned the civil Court's

order dated 05.08.2021. The civil Court by this order

has allowed the application (I.A.No.16) filed by the

second respondent (the second defendant) under Order

VI Rule 17 read with Section 151 of the Code of Civil

Procedure, 1908 permitting this respondent to amend

the written statement. The civil Court is presently

seized of the suit because this Court has set aside the

earlier judgment and decree dated 21.10.2013 and

restored the suit for reconsideration with certain

observation and liberties to the parties.

2. This suit in O.S.No.9068/2006 for partition

was decreed by the civil Court without the third

defendant [the second petitioner] contesting the suit. In

the appeal filed by the second petitioner before this

Court in R.F.A.No.1881/2013, however he was

permitted to contend that the properties owned by his

wife (the first petitioner) are also decreed and such

decree could not have been without an opportunity to

the first petitioner. This Court in the light of this

grievance has disposed of the appeal by the order dated

25.02.2021; in terms of the liberty granted by this

Court, the first respondent - the plaintiff has filed

application to implead the first petitioner.

3. It is after the first petitioner is impleaded,

the second respondent (the second defendant) has filed

the present application. The petitioners are aggrieved

because they assert that the remand by this Court is

limited to decide whether the properties claimed by the

first petitioner could be partitioned and the civil Court's

judgment and decree cannot be revisited otherwise.

4. It is undisputed by the learned counsels for

the parties that the amendment proposed by the second

respondent in the application has two parts:

a) The amendment which relates to the constitution of the joint family and the utilization of the joint family income for purchase of certain properties; and

b) The amendment to essentially assert that the second petitioner as a member of the undivided family has utilized the funds of such family to purchase certain properties in the name of his wife, the first petitioner.

5. This Court has set aside the civil Court's

judgment principally to enable the first petitioner to

substantiate her defence that her properties have been

included and those properties cannot be divided without

an opportunity to her. Further, it is undisputed that

the second respondent, to support his case that the

properties claimed by the first petitioner are joint family

properties could bring in necessary amendments to

refute the petitioners' case in that regard and also to

substantiate evidence because of the first petitioner's

subsequent pleadings.

6. The second part of the amendment reads as

under:

"The third defendant being a joint family member, also purchased sites from out of the joint family

and the business at Item No. 12. These properties were purchased in the name of Smt. Suguna. The intention of third defendant was that Smt. Suguna will purchase the property in her own name and joint family property and she being a woman and wife in the joint family, she will not have any independent right as the consideration amount paid from the joint family funds. It is during that period the investment and amounts were realized and paid from the joint family funds and therefore, the said properties are joint family properties. The wife of the third defendant does not have any independent income and she is not an educated person. The said joint family property is held jointly by the plaintiff, this defendant and other defendants and no exclusive

right of Smt. Suguna and was available being the wife of the third defendant as third defendant had no independent source of income except the income derived from the joint family properties including the silk business that were carried out. Therefore, the third defendant was not having any funds available with him. It is only from the hard work and investment of this defendant, the properties were able to be purchased including the vehicles and other business of Motor Driving School which is established."

The parties because of unanimity must be permitted to

amend their plea and lead evidence insofar as the first

petitioner's case.

7. The controversy is with regard to the first set

of amendment. This Court, while disposing of the

appeal and restoring the suit, liberty is also given to the

second petitioner, who has not filed his written

statement, to take advantage of the material already on

record to substantiate his case of a prior partition and

all the properties being his own or his wife's properties.

This Court must observe that the respondents, in the

earlier proceedings before this Court, seriously