Karnataka High Court
Sri M A Sreenivasan vs Smt. Mimi Parthasarathy on 28 January, 2025
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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WP No. 1985 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
WRIT PETITION NO. 1985 OF 2025 (GM-CPC)
BETWEEN:
SRI M A SREENIVASAN
AGED ABOUT 60 YEARS
S/O LATE M A PARTHA SARATHY
RESIDING AT HAMSINI NO.1
12TH CROSS, R.M.V. EXTENSION
SADASHIVANAGAR, BANGALORE - 560080
...PETITIONER
(BY SRI. ARUN B M.,ADVOCATE)
AND:
SMT. MIMI PARTHASARATHY
AGED ABOUT 57 YEARS
D/O LATE M A PARTHA SARATHY
RESIDING AT SREENIVASAM
Digitally signed by NO.20, 9TH CROSS, MALLESHWARAM
HEMALATHA A BANGALORE - 560003.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI.DHYAN CHINNAPA., SENIOR COUNSEL FOR
SMT. SANJANA RAO, ADVOCATE FOR C/RESPONDENT)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED: 01.07.2024 PASSED BY THE XLIV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(C.C.C.H NO. 45) THEREBY DISMISSING I.A.NO. 32 FILED BY
THE PETITIONER UNDER ORDER 6 RULE 17 OF CPC IN O.S.NO.
3294/2002 AT ANNEXURE-A AND CONSEQUENTIALLY ALLOW
THE APPLICATION AND ETC.
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WP No. 1985 of 2025
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL ORDER
Though the matter is listed for orders, with the
consent of the parties, the same is taken up for final
disposal.
2. This writ petition is filed by the plaintiff under
Article 227 of the Constitution of India, challenging the
order dated 01.07.2024, passed by XLIV Additional City
Civil and Sessions Judge, Bengaluru (CCH-45), whereby
the application (IA No.32) filed by the plaintiff under Order
VI Rule 17 r/w. Section 151 of CPC is dismissed.
3. The plaintiff filed a suit for partition and separate
possession. After service of summons, defendants
appeared through counsel and filed written statement. On
the basis of the pleadings of the parties, the trial court
framed the issues. The matter has been posted for
evidence. During that time, plaintiff filed IA No.32 under
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Order VI Rule 17 of CPC for amendment of the plaint on
the ground that the plaintiff's mother has executed a gift
deed dated 15.12.2004 with coercion and force.
3. The main contention of the plaintiff is that the gift
deed has been executed by plaintiff's mother with coercion
and force. Therefore, the plaintiff wants to produce
materials to prove his contention. The trial court, without
considering this aspect of the matter erred in rejecting the
application. He has also relied on the judgment of this
Court in R.S.A.No.2190/2016 and contended that even
though the petitioner/plaintiff has not sought for
declaration that gift deed dated 15.12.2004 is not binding
on the plaintiff, in the suit for partition, he can seek for
partition in respect of joint family property.
4. Per contra, learned Senior Counsel for the
respondent/defendant contended that in the very same
suit, on an earlier occasion, the petitioner/plaintiff filed IA
No.XIX under Order VI Rule 17 of CPC challenging the gift
deed dated 15.12.2004. The same has been dismissed on
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07.08.2015 on the ground that in a suit for partition it is
not necessary to seek for declaration of the gift deed, if it
is a joint family property. He further contended that the
trial court, after considering all these aspects has rightly
rejected the application.
5. Heard learned counsel for the parties and perused
the writ papers.
6. It is not in dispute that the plaintiff filed a suit for
partition. During the pendency of the suit, he filed IA
No.XIX under Order VI Rule 17 of CPC for amendment of
the plaint by incorporating the prayer by challenging gift
deed dated 15.12.2004. The trial court, by order dated
07.08.2015 dismissed the application. Since the plaintiff
filed a suit for partition on the ground that the suit
schedule property is a joint family property, if that would
be the case, any joint family member transfer the
properties by sale or gift deed without consent of the other
family members. Without challenging the alienation or gift
deed he cannot maintain a suit for partition. This Court in
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RSA No.2190/2016 disposed of on 11.01.2024, after
considering the Division Bench judgment in the case of
GANAPATI SANTARAM BHOSALE vs. RAMACHANDRA
SUBBARAO KULKARNI (RFA No.87/1975 disposed of
on 12.02.1985) held as follows:
"17. In the light of discussion made supra, the
finding of the appellate Court that plaintiffs could
not have maintained a suit for partition without
seeking cancellation of sale deed suffers from
perversity, serious infirmity and is patently
erroneous. The findings recorded by the appellate
Court on point No.1 is found to be in contravention
with the dictum laid down by the Division Bench in
the case of GANAPATI BHONSALE (supra)."
7. In view of the above, the trial court has rightly
held that what is intended to be incorporated by the
plaintiff is telephonic conversation which is said to have
stored in a pen drive, typed transcription and alleged oral
conversion has nothing to do with the suit of this nature.
Without that, he can seek for a partition. There is no error
or illegality in the order passed by the trial court.
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8. Accordingly, writ petition is dismissed.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
CM
