Sri. Venkata Ramachari vs Chikkannachari
2022 Latest Caselaw 9387 Kant

                         1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF JUNE, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        WRIT PETITION NO.12225 OF 2022 (GM-CPC)

BETWEEN:

1.     SRI.VENKATA RAMACHARI
       S/O GOVINDA CHARI
       AGED ABOUT 75 YEARS

2.     CHANDRAMMA
       W/O SRI.VENKATA RAMACHARI
       AGED ABOUT 63 YEARS

3.     KRISHNACHARI
       S/O GOVINDACHARI
       AGED ABOUT 50 YEARS

       ALL ARE RESIDING AT
       THIRUMALAPURA VILLAGE
       BASARALU HOBLI
       MANDYA TALUK - 571416

                                      ...PETITIONERS

(BY SRI.JAGADEESHA P, ADVOCATE)

AND


1.     CHIKKANNACHARI
       S/O GOVINDACHARI
       AGED ABOUT 63 YEARS
                         2



     THIRUMALAPURA VILLAGE
     BASARALU HOBLI
     MANDYA TALUK - 571416

2.   SAVITHRAMA
     D/O GOVINDACHARI
     W/O KALACHARI
     AGED ABOUT 55 YEARS
     R/AT K.M.DODDI VILLAGE
     MADDUR TALUK - 571416

3.   KALAMMA
     D/O GOVINDACHARI
     W/O CHIKKAPUTTAIAH
     AGED ABOUT 53 YEARS
     R/AT KUDUR GUNDI VILLAGE
     MANDYA TALUK - 571416

4.   SHANTA
     D/O GOVINDACHARI
     W/O BASAVARAJA CHARI
     AGED ABOUT 51 YEARS
     HANAGANAHALLI
     BASARALU HOBLI
     MANDYA TALUK - 571416

                                   .....RESPONDENTS


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER FOUND IN ANNEXURE-E DATED
09.06.2022 PASSED ON I.A.NO.13 IN O.S.NO.76/2015 BY
THE LEARNED PRL. SENIOR CIVIL JUDGE AND CJM,
MANDYA, ALLOW THIS WRIT PETITION WITH COSTS.


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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                             ORDER

The captioned writ petition is filed by defendant

Nos.1 to 3 questioning the order of the learned Judge

passed on I.A.No.13 permitting the respondent No.1 -

plaintiff to amend the plaint and include some more

properties.

2. The petitioners strongly resisted the

amendment application filed by the respondent No.1 -

plaintiff. The learned Judge having examined the rival

contentions has proceeded to exercise discretion in

favour of the plaintiff and consequently, has allowed

the application. The learned Judge while allowing the

application was of the view that if the suit schedule

properties are joint family ancestral properties, then

the co-parceners are entitled to file one more suit,

which may lead to multiplicity of proceedings.

Therefore, even though the learned Judge found that

there is some delay in seeking amendment, exercising

judicial discretion in favour of the plaintiff, the learned

Judge has proceeded to allow the application. It is this

order which is under challenge.

3. Heard learned counsel appearing for the

petitioners. Perused the order under challenge.

I have also examined the judgment cited by the

learned counsel appearing for the petitioners in the

case of M.REVANNA VS. ANJANAMAM (DEAD) BY

LEGAL REPRESENTATIVES AND OTHERS reported

in (2019)4 SUPREME COURT CASES 332.

4. The respondent - plaintiff has instituted a

suit for partition and separate possession. By way of

amendment, the respondent No.1 - plaintiff claims

that through oversight, five ancestral properties were

left out. Therefore, the present amendment

application came to be filed by producing documents

indicating that these properties are also joint family

ancestral properties. The respondent No.1 - plaintiff

asserts that the properties left out, which are now

sought to be included by way of amendment, are also

joint family properties, while the present petitioners

claimed that the suit schedule properties are their self

acquired properties. Therefore, the proposed

amendment cannot be allowed at this stage more

particularly when the matter is set down for final

arguments. The question as to whether left out

properties are joint family ancestral properties or self

acquired properties needs an adjudication. Having

regard to the nature of the suit, this Court is of the

view that the learned Judge was justified in taking

lenient view in a partition suit. The coparceners in a

family have a pre-existing right. If the plaintiff is able

to prove that the left out properties are also joint

family ancestral properties, then he is entitled for his

legitimate share in the left out properties.

If amendment application is allowed that in itself will

not prove and establish that the properties now

sought to be incorporated are also ancestral

properties. The initial burden would still be on the

plaintiff and the same has to be discharged by the

plaintiff. It is only when the initial burden is

discharged, the onus would shift on the present

petitioners. It is open for the present petitioners to

lead rebuttal evidence and establish that the

properties are not ancestral properties. Mere delay in

filing the amendment application cannot be a ground

to reject the prayer. Amendments are to be liberally

allowed more particularly in a partition suit since

family members have a pre-existing right in the suit

schedule properties. Therefore, I am of the view that

discretion exercised by the learned Judge does not

suffer from any infirmities. No error is made out.

Accordingly, the writ petition is dismissed.

Sd/-

JUDGE

NBM