Smt. Uma Devaraj vs Smt. A. D. Lavanya Prasad
2023 Latest Caselaw 6524 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 14TH DAY OF SEPTEMBER, 2023

                        BEFORE

          THE HON'BLE MR.JUSTICE S.G.PANDIT

    WRIT PETITION No.15609/2023 (GM-CPC)
BETWEEN:

1.     SMT. UMA DEVARAJ
       AGED ABOUT 83 EYARS
       W/O LATE A.N. DEVARAJ

2.     SRI A.D. SUROOP
       AGED ABOUT 62 YEARS
       S/O LATE A.N. DEVARAJ

       PETITIONERS NO.1 & 2 ARE
       R/AT NO.73, "MAYA"
       MILLER ROAD, VASANTHNAGAR
       BENGALURU-560001.
                                       ...PETITIONERS
(BY SRI K SUMAN, SR. COUNSEL A/W
 SRI SIDDHARTH SUMAN, ADV.)

AND:

SMT. A.D. LAVANYA PRASAD
AGED ABOUT 61 YEARS
D/O LATE A.N. DEVARAJ
W/O SRI G.V. PRASAD
R/AT NO.73/3, "MANASA"
MILLERS ROAD, VASANTHNAAR
BENGALURU-560 052.
                                        ....RESPONDENT
(BY SRI. T.V. VIJAYA RAGHAVAN, ADV. FOR C/R)
                                   2

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE     CONSTITUTION            OF     INDIA           PRAYING        TO
QUASHING/SETTING ASIDE THE ORDER DATED 12.07.2023
PASSED BY THE COURT OF LXXV ADDL.CITY CIVIL AND
SESSIONS       JUDGE,    BENGALURU       IN     O.S.62/2015          (CCH
NO.76) I.E., ANNEXURE-A AND ALLOW THE I.A. FILED BY
THE PETITIONERS UNDER SECTION 151 OF THE CODE OF
CIVIL PROCEDURE IN O.S.62/2015 IN THE COURT BELOW
I.E., ANNEXURE-D.


      THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED       ON         16/09/2023          COMING          ON     FOR
PRONOUNCEMENT           THIS    DAY,   THE     COURT      MADE       THE
FOLLOWING:


                            ORDER

The petitioners/defendants in O.S.No.62/2015 on

the file of the LXXV Additional City Civil and Sessions

Judge (CCH-76) at Bengaluru (for short, 'Trial Court')

are before this Court under Article 227 of the

Constitution of India assailing the order dated

12.07.2023 by which the IA filed under Section 151 of

CPC praying for a direction to the plaintiff to include

item Nos.4 and 5 mentioned in the IA to the plaint

schedule is rejected.

      2.   Heard         the      learned      senior         counsel

Sri.K.Suman        for         Sri.Siddharth      Suman           for

petitioners/defendants, learned counsel for petitioners

and learned counsel Sri.T.V.Vijaya Raghavan for

Caveator/respondent. Perused the writ petition papers.

3. Learned senior counsel for the

petitioners/defendants would submit that suit filed by

the respondent/plaintiff is one for a judgment and

decree of partition and separate possession of the suit

schedule properties consisting of three items; for mesne

profits; and to declare that gift deed dated 22.12.2006

executed by late A.N.Devaraj in favour of defendant

No.2 i.e., petitioner No.2 herein pertaining to item No.3

of the suit schedule property is not binding on the

plaintiff; and also to declare registered partition deed

dated 13.06.1974 and Will dated 04.04.2005 are not

binding on the plaintiff.

     4.     Learned         senior        counsel     for      the

petitioners/defendants        would        submit     that     the

petitioners/defendants filed IA under Section 151 of CPC

praying for a direction to the plaintiff to include item

Nos.4 and 5 mentioned in the application to the suit

schedule. Learned senior counsel would submit that the

respondent/plaintiff had not included all the properties

to the suit schedule, so as to enable the Court to make

equitable partition, if the Court were to accept the

contention of the respondent/plaintiff. Learned senior

counsel would submit that among family members,

partition had taken place under registered partition deed

dated 13.06.1974 and in the present suit, the

respondent/plaintiff intends to re-open the entire

partition. Therefore, he submits that if the partition is to

be re-opened, all items are liable to be included.

Learned senior counsel would submit that item Nos.4

and 5 mentioned in the application filed under Section

151 of CPC to include those items to the suit schedule

property ought to have been included by the plaintiff to

the suit schedule, but the plaintiff has deliberately not

included two items shown in the application, since

admittedly it was acquired by father of the plaintiff and

petitioner No.2 herein under registered partition deed.

5. Learned senior counsel would submit that

item No.4 was relinquished in favour of

respondent/plaintiff herein by their father late

A.N.Devaraj under release deed dated 23.11.1991 and

item No.5 was sold by father of the plaintiff and

defendant No.2 under registered sale deed dated

26.10.1977 to one Amarjit Singh. Therefore, learned

senior counsel fairly submits that he would not press

application insofar as item No.5 is concerned i.e.,

property bearing No.73/2 sold under registered sale

deed dated 26.10.1977, as the third party right has

been created. Learned senior counsel would submit that

he would press the application insofar as item No.4

mentioned in the application for inclusion in the plaint

schedule since the said property is relinquished by his

father in favour of plaintiff which the plaintiff is enjoying

as on this day. Learned senior counsel would submit that

contention of the respondent/plaintiff that all properties

which are disposed prior to 20.12.2004 to be excluded

for partition would not apply to item No.4. The item

No.4 is not alienated or any third party right is created.

The father of plaintiff and petitioner No.2, relinquished

his right in favour of the respondent/plaintiff. Therefore,

he submits that said item shall have to be included in

the suit schedule for partition. Whether the said item is

amenable to partition shall have to be decided by the

Trial Court after trial. At this stage, the Trial Court could

not have come to the conclusion that said property is

not amenable to partition and cannot be included in the

plaint schedule.

6. Learned senior counsel also placed reliance

on the decision of Division Bench of this Court in the

case of S.K.LAKSHMINARASAPPA, SINCE DECEASED

BY HIS L.RS., VS. SRI.B.RUDRAIAH AND OTHERS1

to contend that when the party intends to re-open the

partition, they have to include all joint family properties

for equitable partition. Thus, he prays for allowing the IA

filed under Section 151 of CPC directing the

respondent/plaintiff to include item No.4 to the plaint

schedule.

7. Per contra, learned counsel Sri.T.V.Vijaya

Raghavan supports the order passed by the Trial Court

and submits that the Trial Court taking note of the legal

position has rightly rejected application of the

ILR 2012 KAR 4129

petitioners/defendants filed under Section 151 of CPC to

include item Nos.4 and 5 to the plaint schedule. Learned

counsel would submit that those two items of properties

are not available for partition since both the items are

disposed of prior to 2004 i.e., on 23.11.1991 and

26.10.1977 respectively. He places reliance on the

decision of the Hon'ble Apex Court in the case of

PRAKASH AND OTHERS V/S. PHULAVATHI AND

OTHERS2 and VINEETA SHARMA VS. RAKESH

SHARMA AND OTHERS3 to contend that properties

which are alienated prior to 20.12.2004 would not be

available for partition. Learned counsel for the

respondent/plaintiff would also submit that the

application is belatedly filed and at any point of time

petitioners/defendants have not raised the said

contention and only to drag on the proceedings, the

petitioners/defendants have come up with the present

(2016) 2 SCC 36

(2020) 9 SCC 1

application. Learned counsel further submits that after

completion of evidence of the parties,

petitioners/defendants could not have filed such

application. Thus, he prays for dismissing the writ

petition.

8. Having heard the learned counsel appearing

for the parties and on perusal of the writ petition papers,

the only point which falls for consideration is as to,

Whether the Trial Court is justified in rejecting application filed under Section 151 of CPC seeking direction to the respondent/plaintiff to include item Nos.4 and 5 to the plaint schedule?

9. The answer to the above point would be that

the Trial Court is not justified in rejecting the application

and ought to have allowed the application, for the

following reasons:

Learned senior counsel for petitioners/defendants

Sri.K.Suman as stated above submitted that

petitioners/defendants would not press I.A filed under

Section 151 of CPC for a direction to the

respondent/plaintiff to include two items of property

insofar as item No.5 mentioned in the application since

the said item is alienated by father of petitioner No.2

and respondent/plaintiff during his lifetime and as third

party rights are created. The submission of the learned

senior counsel made on behalf of the

petitioners/defendants is placed on record and impugned

order insofar as item No.5 of the I.A is confirmed.

10. The petitioner/defendant No.1 is the wife of

late A.N.Devaraj, whereas petitioner/defendant No.2 and

respondent/plaintiff are the son and daughter of late

A.N.Devaraj and the first petitioner. The suit of the

respondent/plaintiff is one for partition and separate

possession of suit schedule properties and to declare

that plaintiff is entitled for 1/3rd share in the suit

schedule; enquiry regarding mesne profit; declaring that

gift deed dated 22.12.2006 executed by late

A.N.Devaraj in favour of defendant No.2 pertaining to

item No.3 of the suit schedule property is not binding on

the plaintiff; as well as to declare that the registered

partition deed dated 13.06.1974 and Will dated

04.04.2005 are not binding on the plaintiff.

11. The case of the petitioners/defendants is that

partition had already taken place under registered

partition deed dated 13.06.1974 and the properties were

allotted to the parties to the suit. The suit of the plaintiff

in substance is to re-open the partition. If the partition

is to be re-opened, all the joint family properties must

be included for equitable partition, as held in

S.K.LAKSHMINARASAPPA, SINCE DECEASED BY

HIS L.RS., (supra). Insofar as item No.4 of the IA., it is

the case of the respondent/plaintiff that said item has

been released to the plaintiff by her father late

A.N.Devaraj under registered release deed dated

23.11.1991 and as such the same cannot be included in

the plaint schedule. In that regard, learned counsel for

the respondent/plaintiff placing reliance on PRAKASH

AND OTHERS case (supra) and VINEETA SHARMA

(supra), contended that properties which are alienated

prior to 20.12.2004 would not be available for partition.

Whether the relinquishment in favour of the daughter

would amount alienation or under what circumstances

such relinquishment has taken place is a matter for trial.

The Trial Court at the stage of passing order on interim

application could not have come to the conclusion that

item No.4 is not available for partition since it is already

disposed of in favour of respondent/plaintiff. Normally

while deciding an application, the Court shall not go into

merits of the main matter sought or shall not express

opinion on the merit. The Court shall examine as to

such direction as sought in the application to include one

item would be necessary to decide the real controversy

involved. Mere inclusion of an item to the plaint

schedule, the item would not be available for partition.

It shall be proved by the parties that the properties

included in the plaint schedule are joint family properties

or that the property is purchased out of the nucleus of

the joint family income.

12. Therefore, I am of the view that mere

inclusion of an item would not prejudice the case of any

of the parties to the partition suit. The main purpose and

object of allowing adding of item as sought in this type

of cases would be to avoid multiplicity of proceedings

and to minimize the litigation. Always the Courts shall

endeavour to decide or adjudicate the disputes on

merits and technicalities shall not come in the way of

dispensation of justice.

14. The instant application filed under Section

151 of CPC is in the nature of amending the plaint

schedule. In a partition suit, both parities may seek

inclusion of properties to the plaint schedule but

ultimately it is for the parties to prove that the plaint

schedule properties are joint family properties. The

Hon'ble Apex Court in a case reported in the case of

RAJESH KUMAR AGGARWAL AND OTHERS VS.

K.K.MODI AND OTHERS4 while considering a case

relating to amendment under Order VI Rule 17 of CPC at

paragraphs 15 and 18 has observed as follows:

"15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

18. As discussed above, the real controversy test is the basic or cardinal test and

(2006) 4 SCC 385

it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court."

15. For the reasons recorded above, I proceed to

pass the following:

ORDER

(i) Writ petition is allowed.

(ii) Impugned order dated 12.07.2023 on

the IA filed under Section 151 of CPC

refusing to include item No.4 of the IA

is set aside.

(iii) I.A filed under Section 151 of CPC in

O.S.No.62/2015 on the file of the LXXV

Additional City Civil and sessions Judge

(CCH-76) at Bengaluru insofar as item

No.4 is directed to be included in the

plaint schedule.

All contentions of the parties are left open.

Sd/-

JUDGE

NC.

CT:bms