RAGHAVENDRA AITHAL & ANR. vs SHRIDHAR AITHAL & ORS.

The defendant Nos.1 and 2/petitioners filed the present writ petition against the order dated 10.08.2017 made in O.S.No.15/2017 on the file of

the Principal Senior Civil Judge and MACT, Dakshina Kannada, Mangaluru, allowing I.A.No.7 filed by the plaintiff/ respondent No.1 under

Order VI Rule 17 r/w Section 151 of Code of Civil Procedure.

The respondent No.1/plaintiff filed suit in O.S. No.15/2017 for partition and separate possession in respect of the suit schedule properties

morefully described in the schedule to the plaint, contending that the suit schedule properties are the joint family properties of plaintiff and

defendants 1 and 2 and there was no earlier partition in the joint family.

The defendants 1 and 2 filed their written statement and contended that the ''B'' schedule property was purchased by late Seethamma, mother of

plaintiff and defendants 1 and 2, under a registered sale deed dated 12.12.1991. Thereafter, she executed a registered Will dated 17.07.2015

bequeathing the schedule ''B'' property in favour of defendants 1 and 2 and therefore, plaintiff is not entitled to any share in the schedule ''B''

property and therefore, sought for dismissal of the suit.

Thereafter, the plaintiff filed an application under Order VI Rule 17 of Code of Civil Procedure to amend the plaint contending that, during the

course of discussion, he noticed the error. Therefore, the amendment is necessary only to clarify the property numbers and source of title to the

property. The said application was resisted by the defendants 1 and 2 contending that the averments made in the application are contrary to

pleadings in the plaint and it is an attempt to change the nature of the suit and therefore, application is not maintainable and sought for dismissal of

the application.

The Trial Court, by the impugned order, allowed the application for amendment filed by the plaintiff. Aggrieved by the said order, the present

writ petition is filed by defendants 1 and 2.

I have heard the learned counsel for the parties to the lis.

Sri Raghupathy.T.N. learned counsel for the petitioners/ defendants 1 and 2 contended that respondent No.1 herein filed suit for partition in

respect of ''A'' and ''B'' schedule properties. By way of amendment, plaintiff wanted to introduce altogether new case which is not permissible,

though the application was filed before the commencement of evidence. He further contended that in para 3 of the written statement, defendants 1

and 2 have denied the averments made in para 3 of the plaint with regard to ownership of late Seethamma over the schedule ''B'' property. But at

para 4, the defendants 1 and 2 admitted that plaint ''B'' schedule property belonged to Seethamma and she purchased it under registered sale deed

dated 12.12.1991. She executed a Will dated 17.07.2015 bequeathing schedule ''B'' property in favour of defendants 1 and 2. Therefore,

amendment is not necessary. The Trial Court has not assigned any reasons to allow the application and therefore, sought to quash the impugned

order, by allowing the writ petition.

Per contra, Sri Sudhakar Pai, learned counsel for the caveator-respondent No.1/ plaintiff sought to justify the impugned order and contended

that the application is filed only to correct the property numbers mentioned in the schedule ''B'' property and the amendment sought is only

clarificatory in nature giving details as to how the property was acquired by Seethamma. Therefore, sought to dismiss the writ petition.

Having heard the learned counsel for the parties, it is not in dispute that the suit is filed for partition in respect of suit schedule properties. There

is no dispute with regard to ''A'' schedule property. The dispute is only in respect of ''B'' schedule property. According to the plaintiff, schedule ''B''

property belongs to late Seethamma, mother of plaintiff and defendants 1 and 2. Since Seethamma purchased the property under a registered sale

deed dated 12.12.1991, after her death on 03.09.2015, the property devolved upon the plaintiff and defendants and therefore, plaintiff is entitled

to 1/3rd share. The said contention is disputed by the defendants 1 and 2 in para 3 of the written statement. The defendants 1 and 2 contended

that though the property was purchased in the name of Seethamma, she executed a registered Will dated 17.07.2015 in favour of defendants 1

and 2, and therefore, plaintiff is not entitled to any share.

It is the case of the plaintiff that schedule ''B'' property was purchased by late Seethamma under registered sale deed dated 12.12.1991 out of

joint family funds. The plaintiff wanted to furnish details of the property by way of amendment. The ownership of late Seethamma over the schedule

''B'' property is not disputed by the defendants 1 and 2. But they have set up a specific defence in the written statement that late Seethamma

executed a registered Will in their favour.

In view of the above, it is for the parties to establish their respective case, after adducing and producing oral and documentary evidence. Since

the defendants have not disputed the ownership of late Seethamma over schedule ''B'' property, there is no need for amendment of the plaint in so

far as source of title to the suit ''B'' schedule property. Since the defendants have not disputed the registered sale deed dated 12.12.1991, it is

always open for the plaintiff to crossexamine the defendants as to how Seethamma acquired the property under the registered sale deed. In view of

the same, amendment sought for is unnecessary.

The Trial Court has proceeded to allow the application for amendment filed by the plaintiff under Order VI Rule 17 of Code of Civil

Procedure, mainly on the ground that, mentioning of correct property numbers and explaining the source of acquisition of title over the suit schedule

properties is very much necessary in a suit for partition. Once the ownership of Seethamma is admitted by the defendants, it is for the plaintiff to

prove that the said property is also joint family property and plaintiff is entitled to share, as alleged. Therefore, the impugned order cannot be

sustained. If the impugned order is allowed to sustain, it will take away the defence of the defendants in the written statement.

For the reasons stated above, writ petition is allowed. The impugned order dated 10.08.2017 made in O.S.No.15/2017 on the file of the Prl.

Senior Civil Judge and MACT, Dakshina Kannada, Mangaluru, allowing I.A.No.7 filed by the plaintiff under Order VI Rule 17 of Code of Civil

Procedure is quashed. However, it is made clear that it is always open for the plaintiff to cross-examine the defendants 1 and 2 with regard to

source of title over the schedule ''B'' property and also to lead his evidence to that effect with regard to source of title to the suit schedule ''B''

Property in accordance with law. Ordered accordingly.