Swamikannu and Raji Chettiar vs Vethagiri Chettiar and Venkatcahalam

R. Subbiah, J.—Revision Petitioners are Defendants 1 and 2. This civil revision petition arises out of the order passed by the trial court in

I.A. No. 430 of 2010 in O.S. No. 8 of 2007, whereby the application filed by the 3rd Defendant for amendment of plaint has been allowed.

The 1st Respondent herein/3rd Defendant in the suit filed in I.A. No. 430 of 2010 to amend the plaint for including the properties described in

the affidavit filed in support of the application, stating that in the suit for partition filed by the 2nd Respondent herein/Plaintiff, these properties have

been omitted to be added. But the said application was opposed by the revision Petitioners contending that the properties sought to be added by

way of amendment of the plaint is a separate properties of the parties and as such, they are not available for partition. Hence, the petition for

amendment has to be dismissed.

But the court below has allowed the said application holding that the question, whether the properties sought to be added in the schedule of

plaint are the individual properties of the parties or joint family properties could be decided only at the time of trial and hence, no prejudice would

be caused if the amendment is allowed. Aggrieved over the same, the present revision petition has been filed by Defendants 1 and 2.

Learned Counsel appearing for the revision Petitioners would submit that the properties sought to be added are self acquired properties of the

respective parties and they cannot be included in the suit for partition; but this aspect was not properly considered by the trial court.

In my considered opinion, the revision Petitioners can raise all their contentions before the court below during the course of trial. Since the

Petitioners are having an opportunity to raise all their contentions, I do not find any infirmity in the order passed by the court below. However, the

court below is also directed to give an opportunity to the Defendants 1 and 2 to file additional written statement and also to frame additional issue

as to whether the suit properties are the self acquired properties or ancestral properties and also permit the parties concerned to adduce evidence

on the said issue and decide the matter as expeditiously as possible.

With the above observation, the civil revision petition is disposed of. Consequently, connected M.P. is closed.