Karnataka High Court
Devindra vs Bharathrao Died Per His Lrs Defendants ... on 13 January, 2025
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WP No. 203326 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO. 203326 OF 2024 (GM-CPC)
BETWEEN:
DEVINDRA S/O LATE GORKHANATH HIBARE
AGE ABOUT 74 YEARS, OCCUPATION: AGRICULTURE
AND BUSINESS, R/O VILLAGE HALLIKHED-B,
TQ. HUMNABAD DIST. BIDAR
...PETITIONER
(BY SRI. K. M. GHATE, ADVOCATE)
AND:
1. BHARATHRAO DIED PER HIS LRS
Digitally signed
by RENUKA (1) AMBUBAI W/O LATE BHARATHRAO HIBBARE,
Location: High AGE: 80 YEARS, OCCU: HOUSEHOLD,
Court Of R/O HIBBARE ROADLINES
Karnataka (OFFICE / RESIDENCE )
NEAR BHAVANI TEMPLE, HALLIKHED B,
TQ. HUMNABAD-585330
(2) NAGAMANI W/O SHAMRAO GANURE,
AGE: ABOUT 61 YEARS, OCCU: HOUSEHOLD
(DAUGHTER)
R/O C/O VISHWAGANGA DRESSES,
NEAR SADANAND SWAMY MATH,
BASAVAKALYAN, TQ:
DIST: BIDAR-585419
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WP No. 203326 of 2024
(3) PADMINI W/O VISHNUKANTHRAO
DEVATHRAJ,
AGE: ABOUT 60 YEARS,
OCCU: HOUSEHOLD (DAUGHTER),
R/O H.NO.17-2-304/21,
UPPAR BASTI CHAVANI, YAKATPURA,
HYDERABAD-500023
(4) SUREKHA W/O ANIL MAHINDARKAR,
AGE: ABOUT 58 YEARS (DAUGHTER),
R/O MAHINDARKAR COLLECTION,
NAVIN KAPPAD LINE, OPP: HANCHATE
DRESSES, LATUR PROPER,
DIST: LATUR
MAHARASTRA-413512
(5) KAVITA W/O LATE RAJESH MAHINDARKAR,
AGE ABOUT 56 YEARS, OCCU: HOUSEHOLD,
(DAUGHTER),
R/O 10TH FLOOR, AKSHA
VRUNDAVANA APARTMENT,
NEAR CITY PRIDE SCHOOL,
MOSHI PUNE-412105.
(6) UJWALA W/O UMAKANTH KATHARE,
AGE: ABOUT 53 YEARS, OCCU: HOUSEHOLD
(DAUGHTER),
R/O KATHARE READYMADE
GARMENT FACTORY 584,
UCHAN NAGAR, NEAR BALAJI TEMPLE,
SHOLAPUR MAHARASTRA-413005
(7) UMA W/O ARUN BHAVSAR,
AGE: ABOUT 49 YEARS, OCCU:HOUSEHOLD,
(DAUGHTER)
R/O P-27, ADDITIONAL MICD BARSI ROAD,
C/O PRABHA INDUSTRIES, LATUR-413531,
(8) RAMA W/O AVINASH DANTAKALE,
AGE: ABOUT 47 YEARS, OCCU: HOUSEHOLD
(DAUGHTER),
R/O S-4, BALAJI SHRADHA APARTMENT-34,
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WP No. 203326 of 2024
NEW PACHA PETH,
SHOLAPUR-413005 MAHARASTRA.
(9) RAJENDRA
S/O LATE BHARATHRAO HIBBARE,
AGE: 41 YEARS, OCCU: AGRICULTURE AND
BUSINESS,
R/O HIBBARE ROADLINES (OFFICE/RESIDENCE)
NEAR BHAVANI TEMPLE, TQ. HUMNABAD,
DIST. BIDAR-585330
(10) ARVIND S/O LATE GORKHANATH HIBARE,
AGE ABOUT 63 YEARS,
OCCUPATION: AGRICULTURE AND
BUSINESS R/O VILLAGE,
HALLIKHED-B TQ.
HUMNABAD
DIST: BIDAR-585401.
VITHABAI W/O SHTRUGHAN HIBARE,
DIED AND DELETED AS PER ORDER DATED
26/03/2021.
(11) LALITABAI W/O LATE RAVINDRA HIBARE,
AGE ABOUT 61 YEARS,
OCCUPATION: HOUSEHOLD
R/O VILLAGE HALLIKHED-B TQ.
HUMNABAD DIST. BIDAR-585330.
(12) SHIVRATAN S/O LATE RAVINDRA HIBARE,
AGE: 30 YEARS, OCCU: BUSINESS,
R/O VILLAGE HALLIKHED- B TQ. HUMNABAD
DIST. BIDAR - 585330
(13) JEETENDRA S/O BHARATHRAO,
AGE ABOUT 51 YEARS, OCCUPATION-
ENGINEER AND CONTRACTOR OF HIBARE
BUILDERS AND DEVELOPER CONSTRUCTION
COMPANY.
R/O LATUR, (M. H.)-413512
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WP No. 203326 of 2024
(14) NAGRAJ S/O BHARATHRAO HIBARE,
AGE ABOUT 46 YEARS,
OCCUPATION: AGRICULTURE
AND BUSINESS R/O VILLAGE HALLIKHED-B
TQ. HUMNABAD DIST. BIDAR-585330.
(15) SHUSHILKUMAR S/O ARVIND HIBARE,
AGE: ABOUT 32 YEARS
OCCUPATION: AGRICULTURE
AND BUSINESS R/O VILLAGE
HALLIKHED-B TQ.
HUMNABAD DIST. BIDAR-585330
(16) SHESHNAG
S/O DEVINDRA HIBARE,
AGE ABOUT 36 YEARS,
OCCUPATION: AGRICULTURE,
AND BUSINESS
R/O VILLAGE HALLIKHED-B TQ.,
HUMNABAD, DIST. BIDAR-585330.
(17) RADHABAI W/O MARUTIRAO
DOIJODE, AGE: ABOUT 75 YEARS,
OCCU: HOUSEHOLD,
R/O H. NO.7-2-162,
RANGREZ GALLI, BIDAR-585401
(18) RUKMINIBAI W/O KESHAVRAO MAHENDARKAR,
AGE: ABOUT 77 YEARS, OCCU: HOUSEHOLD,
R/O NEAR KARNATAKA SCHOOL,
BHAVSAR GALLI, RAJESHWAR,
TQ. BASAVAKALYAN, DIST. BIDAR-585419
(19) MALANBAI
W/O RAMRAO SHALGAR,
AGE: 72 YEARS, OCCU: HOUSEHOLD,
R/O ISHWAR NAGAR, BASAVAKALYAN
PROPER DIST: BIDAR-585419
(20) JAIRAJ
S/O NAGRAJ HIBARE
(SHATRUGHAN)
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WP No. 203326 of 2024
AGE: ABOUT 28 YEARS, OCCU: STUDENT
R/O VILLAGE HALLIKHED-B
TQ. HUMNABAD
DIST : BIDAR-585419
...RESPONDENTS
(BY SRI. RAVI B. PATIL, ADVOCATE FOR RESPONDENT NOS.9
TO 15 AND 20;
VIDE ORDER DATED 13.01.2025, NOTICE/S TO RESPONDENT
NOS.1 TO 8 AND 16 TO 19 IS/ARE DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE WRIT OF CERTIORARI / ORDER / DIRECTION,
QUASHING THE ORDER PASSED BY PRL. SENIOR CIVIL JUDGE
AND CJM, BIDAR IN O.S. NO.16/2013 DATED 26.09.2024 VIDE
ANNEXURE-A TO THE WRIT PETITION AND PLEASE TO ALLOW
I.A NO. 35 FILED BY PETITIONER PLAINTIFF UNDER ORDER VI
RULE 17 OF CPC. B) IF UNDER THE FACTS AND
CIRCUMSTANCES NARRATED ABOVE IN THE PRESENT WRIT
PETITION BY THE PETITIONER, THIS HON'BLE COURT COMES
TO THE CONCLUSION THAT THE CONTESTING DEFENDANT
RESPONDENT ARE NOT JUSTIFIED IN OBJECTING THE
PETITION FOR GETTING RESERVED RIGHT OF REBUTTAL
EVIDENCE. THE COST OF THE PRESENT WRIT PETITION MAY
ALSO BE AWARDED TO THE PETITIONER, RECOVERABLE FROM
RESPONDENTS / DEFENDANTS NO.1 TO 5 AND 7 AND 8 TO
MEET THE ENDS OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE R.NATARAJ
ORAL ORDER
The plaintiff in O.S. No.16/2013 pending on the file of the
Principal Senior Civil Judge and CJM., Bidar, (henceforth
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referred to as 'the Trial Court') is before this Court challenging
the rejection of the application (I.A. No.35) filed by him under
Order VI Rule 17 of the Code of Civil Procedure, 1908 (for
short, 'CPC') to amend the plaint and to incorporate an
additional prayer and additional pleadings.
2. The parties shall henceforth be referred to as they
were arrayed before the Trial Court. The petitioner herein was
the plaintiff while the respondents herein were the defendants
before the Trial Court.
3. The suit in O.S.No.16/2013 was filed for partition
and separate possession of the plaintiff's 1/5th share in the suit
schedule properties. The plaintiff claimed that he and the
defendants constituted a joint family and that the family
possessed suit schedule properties which were held jointly by
the plaintiff and the defendants. The plaintiff claimed that his
request for partition was not accepted by the defendant No.1
and he was therefore, advised to file a suit for partition.
4. The suit was contested by the defendant Nos.1 to 5,
7 and 8 who contended that there was prior partition in terms
of which certain properties were allotted to the plaintiff and
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some properties were allotted to the defendants. They also
claimed that certain properties were purchased by them out of
their earnings.
5. During the course of cross-examination of DW.1, he
disclosed that the defendant No.3 had taken the defendant
No.13 in adoption. The plaintiff, therefore, impleaded defendant
No.13 in the suit. The defendant No.13 filed his written
statement through his guardian contending that he was taken
in adoption by the defendant No.3 which was evidenced by the
deed of adoption dated 29.11.2011. The defendant No.13
adopted the written statement filed by the defendant Nos.1 to
5, 7 and 8 and contended that he too was entitled to an equal
share in the properties of the deceased Gorakhnath. Defendant
No.2 filed his additional written statement to the amended
plaint.
6. When the suit was set down for arguments, the
plaintiff filed an application under Order VI Rule 17 of CPC., to
incorporate the following at para No.11(a) in the plaint:
"the plaintiff submits that during pendency of
the suit, at the time of evidence of DW 1, he
has disclosed about execution of adoption deed
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by defendant No.3 in favour of defendant No.
13. The husband of defendant No. 3 and
defendant No. 3 both died as undivided joint
family members and their death ceremonies
have been also performed by the plaintiffs and
namely Shatrughan, during his lifetime had no
intention to take defendant No. 13 in adoption.
It is after his death the deceased defendant No.
without any authority of law have managed to
create the adoption deed bearing document No.
HUM-4-00033-2011-2012 dated: 29/11/2011,
behind and back of the plaintiff and the said
document is required to be declared as null and
void and not binding upon the rights and
interest of the plaintiff in respect of the suit
scheduled properties".
To amend para No.12 of the plaint after line
No. 16, and add the following:
"The plaintiff values the adoption deed for the
purpose of payment of court fees at Rs. 1000/-
and pays the court fee of Rs. 25/- under
section 24(d) of the Karnataka Court fees and
Suits Valuation Act 1958 on this plaint."
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To amend the prayer column of the plaint at f
as follows:
f(I) "That a decree of declaration may kindly be
passed in favor of the deponent plaintiff, that
the alleged adoption deed bearing document
No. HUM-4-00033-2011-12 dated: 29/11/2011
executed in favor of defendant No. 13 on the
file of Sub Registrar Humnabad may kindly be
declared as null and void, not binding upon the
rights and interest of the plaintiff".
7. This application was opposed by the defendant
Nos.2 to 5, 7 and 8, who contended that the same cannot be
entertained at the fag end of the proceedings. They also
contended that the plaintiff did not demonstrate as to how the
proposed amendment was necessary for the adjudication of the
suit.
8. The Trial Court in terms of the impugned order,
rejected the application (I.A. No.35) on the ground that the
plaintiff did not disclose as to when he came to know about the
execution of the adoption deed. It held that when the plaintiff
did not disclose the said relevant fact, he cannot be permitted
to file an application for amendment of the plaint at a belated
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stage of the suit. Consequently, it rejected the application in
terms of the impugned order.
9. Being aggrieved by the said order, the plaintiff is
before this Court.
10. Learned counsel for the plaintiff/petitioner contends
that the defendant No.13 claimed to be the adopted son of
deceased defendant No.3 and that the properties that had
fallen to the share of the defendant No.3 were transferred to
the defendant No.13 under the said adoption deed. He,
therefore, contends that if the plaintiff is able to establish that
the said adoption deed was nominally executed, or that it is not
legal or enforceable or not acted upon, then the plaintiff too is
entitled for a share therein. Thus, he contends that the
amendment sought for by the plaintiff was necessary and the
Trial Court committed an error in rejecting the application (I.A
No.35).
11. Per contra, the learned counsel for the contesting
respondents contends that the Trial Court had framed an
additional issue as to whether the defendant No.13 proves that
he was adopted by the defendant No.3 as per adoption deed
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dated 29.11.2011. He, therefore, contends that the burden of
proving the said issue is upon the defendant No.13 and
therefore, there is no need for the plaintiff to amend the suit to
seek for a declaration that the adoption deed dated 29.11.2011
is not binding upon him. He submits that the plaintiff has no
locus standi to challenge the adoption as the adoption is
between defendant No.13 and the defendant No.3.
12. I have considered the submissions of the learned
counsel for the petitioner and the learned counsel for the
contesting respondents.
13. In the suit for partition, while the plaintiff claimed
that the suit properties were held jointly, the defendants
contended to the contrary and claimed that there was a prior
partition and that some of the properties were purchased out of
their self-earnings. Therefore, it is upon the plaintiff to
establish the fact that the properties were held jointly as on the
date of the suit and that there was no partition. The defendants
are bound to prove the prior partition and the onus upon the
defendants is more than the plaintiff, as the defendants had
claimed that there was a prior partition, thereby admitting that
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the suit properties belonged to the family. In so far as the
defendant No.13 is concerned, mere execution of a deed of
adoption would not dispense its proof and its validity. The
defendant No.13 is bound to establish that there was a valid
adoption. Therefore, the Trial Court has rightly framed an issue
as to whether defendant No.13 proves that he was adopted by
defendant No.3 in terms of the deed of adoption dated
29.11.2011. In the event defendant No.13 is not able to
establish that he was adopted by defendant No.3, and if the
other defendants are not able to establish a prior partition, then
it goes without saying that the plaintiff would be entitled to a
share in all the properties, including the properties that are the
subject matter of the adoption deed dated 29.11.2011.
14. Though the reasoning of the Trial Court in rejecting
the application cannot be accepted, but yet the application was
rightly rejected, as the amendment sought for by the plaintiff
was not really necessary for the consideration of the suit.
15. In that view of the matter and subject to the
observations made above, this writ petition stands disposed
off.
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Liberty is reserved to the petitioner to raise this as a
ground in an appeal that may be filed by the petitioner against
the judgment that may be passed in the suit.
Sd/-
(R.NATARAJ)
JUDGE
RSP- para No.13 till the end
CT:SI'
