Partly allowed

M/S Reddy Structures Pvt. Ltd. v. Sri Thimarayappa

Karnataka HC10 Dec 2021WP/1742/2019

Case brief

AI extract

What is this about?

This High Court disposed of two writ petitions challenging a trial court order in a partition suit. In one case, strikes off a redundant issue on share entitlement. In the other, rejects an application to amend pleadings to deny a relationship previously admitted, citing prior stamped contradicts.

What did the court decide?

Writ petition 1742 of 2019 allowed; issue nos 6 and 10 struck off. Writ petition 42478 of 2019 rejected; amendment plea rejected.

M/S Reddy Structures Pvt. Ltd. Vs Sri Thimarayappa — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.42478/2019 (GM-CPC)

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C/W.

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WRIT PETITION NO.1742/2019 (GM-CPC)

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IN W.P. NO.42478/2019:

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BETWEEN :

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1 . SMT. CHIKKA MUNIVENKATAMMA D/O LATE SRI DODDAIAH, AGED ABOUT 45 YEARS,

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2 . SMT DODDA MUNIVENKATAMMA, D/O LATE SRI DODDAIAH, AGED ABOUT 50 YEARS,

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3 . SMT MUNICHOWDAMMA, D/O LATE SRI DODDAIAH, AGED ABOUT 43 YEARS,

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4 . SMT SARASWATHAMMA, W/O LATE SAMBAIAH, AGED ABOUT 45 YEARS,

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5 . AJAY S/O LATE SAMBAIAH, MINOR,

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6 . VIJAY S/O LATE SAMBAIAH MINOR,

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(THE PETITIONER No. 5 & 6 ARE MINORS REPRESENTED BY THEIR NATURAL MOTHER & GUARDIAN SMT SARASWATHAMMA THE PETITIONER NO.4 HERERIN)

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7 .	SRI. MUNISWAMY, S/O LATE SRI DODDAIAH, AGED ABOUT 44 YEARS,
8 .	SRI MUNIRATHNA, S/O LATE SRI DODDAIAH, AGED ABOUT 40 YEARS,
9 .	SRI. CHOWDAPPA, S/O LATE SRI DODDAIAH, AGED ABOUT 37 YEARS,
10	. SRI KRISHNAPPA, S/O LATE SRI MUNISWAMAPPA, AGED ABOUT 72 YEARS,
11	. SMT. THOTAMUNIYAMMA, S/O LATE SRI MUNISWAMAPPA, AGED ABOUT 66 YEARS,
12	. SRI PAPANNA, S/O LATE SRI MUNISWAMAPPA, AGED ABOUT 60 YEARS,
	ALL ARE R/AT SADARAMANGALA KADUGODI POST, BENGALURU-560 067. (NOTE: DEFENDANT No.12 DIED. HENCE LRs OF DEFENDANT No.12 NOT ON RECORD)

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...PETITIONERS

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(By Sri. NARAYANASWAMY K, ADVOCATE)

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AND:

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1 . SRI. THIMARAPPA, S/O LATE SRI MUNIYAPPA, AGED ABOUT 65 YEARS,

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2 . SMT MUNIVENKATAMMA, D/O LATE SRI MUNIYAPPA, AGED ABOUT 42 YEARS,

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3 . SMT HEMA, D/O LATE SRI MUNIYAPPA, AGED ABOUT 28 YEARS,

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4 . ASHA, D/O LATE SRI MUNIYAPPA, AGED ABOUT 25 YEARS,

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5 . CHAITHRA, D/O LATE SRI MUNIYAPPA, AGED ABOUT 20 YEARS,

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R-1 TO R-5 ARE R/At SADARAMANGALA, KADUGODI POST, BANGALORE-560 067.

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6 . SRI NAGAPPA, S/O LATE SRI MUNISWAMAPPA, SINCE DECEASED BY HIS LRS,

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6(a) SMT PARVATHAMMA, W/O LATE NAGAPPA, AGED ABOUT 48 YEARS,

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6(b) SMT NETRAVATHI, D/O LATE NAGAPPA,

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AGED ABOUT 25 YEARS,

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6(c) SMT CHAITRA, D/O LATE NAGAPPA, AGED ABOUT 23 YEARS,

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6(d) ANJI, S/O LATE NAGAPPA, AGED ABOUT 20 YEARS,

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R-6(a) TO R-6(d) ARE R/AT SADARAMANGALA, KADUGODI POST, BANGALORE-560 067.

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SMT GOWRAMMA, W/O LATE NANJAPPA, AGED MAJOR,

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SMT ANJINAMMA, D/O LATE NANJAPPA, AGED MAJOR,

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SRI NAGARAJU, S/O LATE NAGAPPA, AGED MAJOR,

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SRI KRISHNAPPA, S/O LATE SRI MUNIYAPPA, AGED ABOUT 60 YEARS,

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SRI VENKATASWAMY, S/O LATE SRI MUNIYAPPA, AGED ABOUT 45 YEARS,

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MUNIYAMMA, S/O LATE SRI CHOWAPPA, AGED ABOUT 80 YEARS,

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R-7 TO R-12 ARE

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R/AT SADARAMANGALA, KADUGODI POST, BANGALORE-560 067.

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SMT KRISHNAMMA, D/O LATE CHOWDAPPA, AGED ABOUT 65 YEARS, R/A SADARAMANGALA, KADUGODI POST, BANGALORE-560 067.

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SRI ANJANEYULU PRATHIPATHI, S/O LATE SRI SUBBAIAH, AGED ABOUT 60 YEARS, R/A NO.67, 3^RD CROSS, RAMAKRISHNA GARDEN, BEHIND GOWRI APARTMENTS, NEW BEL ROAD, BENGALURU-54.

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M/S REDDY STRUCTURES PVT LTD NO.33/1, THE RESIDENCY, 2^ND FLOOR, RESIDENCY ROAD, BENGALURU-560 025.

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…RESPONDENTS

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(BY SMT. PRATHIMA S.K., ADVOCATE FOR R-1 TO R-5; NOTICE SERVED ON R-6(a) TO (d), & R-7 TO R-13 & R-15; NOTICE DISPENSED WITH TO R-14.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD:14.08.2019 IN O.S.NO.25506/2013 ON IA NO.3/19 PASSED BY THE CITY CIVIL JUDGE AT MAYOHALL, BENGALURU [CCH73] AT ANNEXURE-E & ETC.

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IN W.P. No.1742/2019:

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BETWEEN:

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1 . M/S REDDY STRUCTURES PVT LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT 1956,

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AT NO.133/1, THE RESIDENCY, RESIDENCY ROAD, BANGALORE-560 025. REPRESENTED BY ITS AUTHORIZED SIGNATORY, MR BHASKAR REDDY.

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...PETITIONER

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(BY SRI. B.S.RADHANANDAN, ADVOCATE)

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AND:

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1 . SRI THIMARAYAPPA, S/O LATE MUNIYAPPA, AGED ABOUT 65 YEARS,

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2 . SMT MUNIVENKATAPPA, D/O LATE MUNIYAPPA, AGED ABOUT 42 YEARS,

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3 . SMT HEMA, D/O LATE MUNIYAPPA, AGED ABOUT 25 YEARS,

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4 . SMT ASHA, D/O LATE MUNIYAPPA, AGED ABOUT 21 YEARS,

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5 . KUM CHAITHRA, D/O LATE MUNIYAPPA, AGED ABOUT 15 YEARS, R-5 IS MINOR REPRESENTED

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BY THE GUARDIAN RESPONDENT NO.2

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6 . SMT CHIKKAMUNIVENKATAMMA, D/O LATE DODDAIAH, AGED ABOUT 40 YEARS,

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7 . SMT DODDAMUNIVENKATAMMA, D/O LATE DODDAIAH, AGED ABOUT 45 YEARS,

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8 . SMT MUNICHOWDAMMA, D/O LATE DODDAIAH, AGED ABOUT 30 YEARS,

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9 . SMT SARASWATHAMMA, W/O SAMBAIAH, AGED ABOUT 25 YEARS,

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10 . CHI. AJAY, S/O SAMBAIAH, MINOR,

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11 . CHI. VIJAY, S/O SAMBAIAH, MINOR, R-10 AND 11 REPRESENTED BY THEIR GUARDIAN R-9,

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12 . SRI MUNISWAMY, S/O LATE DODDAIAH, AGED ABOUT 35 YEARS,

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13 . SRI MUNIRATHNA, S/O LATE DODDAIAH, AGED ABOUT 23 YEARS,

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14 . SRI CHOWDAPPA, S/O LATE DODDAIAH, AGED ABOUT 20 YEARS,

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15 . SRI KRISHNAPPA, S/O LATE MUNISWAMAPPA,

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AGED ABOUT 55 YEARS,

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16 . SMT CHOWDAMMA, D/O LATE MUNISWAMAPPA, AGED ABOUT 50 YEARS,

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17 . SMT THOTAMUNIYAMMA, D/O LATE MUNISWAMAPPA, AGED ABOUT 48 YEARS,

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18 . SRI. NAGAPPA, S/O LATE MUNSWAMAPPA, AGED ABOUT 46 YEARS, SINCE DEAD BY HIS LRS,

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18(a) SMT PARVATHAMMA, W/O LATE NAGAPPA, AGED ABOUT 45 YEARS,

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18(b) SMT NETHRAVATHI, D/O LATE NAGAPPA, AGED ABOUT 22 YEARS,

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18(c) SMT CHAITHRA, D/O LATE NAGAPPA, AGED ABOUT 20 YEARS,

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18(d) CHI. ANJI, S/O LATE NAGAPPA, AGED ABOUT 14 YEARS,

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MINOR RERPESENTED , BY HIS GUARDIAN RESPONDENT NO.18(a),

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SRI PAPANNA, S/O LATE MUNISWAMAPPA, AGED ABOUT 44 YEARS,

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SMT GOWRAMMA, W/O LATE NANJAPPA, MAJOR,

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SMT ANJINAMMA, D/O LATE NAGAPPA, MAJOR,

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SRI NAGARAJAU, S/O LATE NAGAPPA, MAJOR,

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SRI KRISHNAPPA, S/O LATE MUNIYAPPA, AGED ABOUT 60 YEARS,

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SRI VENKATASWAMY, S/O LATE MUNIYAPPA, AGED ABOUT 45 YEARS,

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SMT MUNIYAMMA, W/O LATE CHOWDAPPA, AGED ABOUT 80 YEARS,

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SMT KRISHNAMMA, D/O LATE CHOWDAPPA, AGED ABOUT 65 YEARS,

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R-1 TO R- 26 ARE RESIDENTS OF , SADARAMANGALA, KADUGODI POST, BANGALORE-67.

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SRI ANJANEYULU PRATHIPATHI, S/O LATE SUBBAIAH, AGED ABOUT 60 YEARS, RESIDING AT NO.67, 3^RD CROSS, RAMAKRISHNA GARDEN, BEHIND GOWRI APARTMENTS,

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NEW BEL ROAD, BANGALORE-560 054.

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…RESPONDENTS

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(BY SMT. PRATHIMA S.K., ADVOCATE, FOR R-1 TO R-5; SRI. NARAYANASWAMY, ADVOCATE FOR R-7 TO R-16 & R-20;

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NOTICE DISPENSED WITH TO R-19 & R-21 TO R-27)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE A PORTION OF THE INTERIM ORDER DATED 21.12.2018 ON I.A. NO.3/2018 FILED BY THE PETITIONER UNDER ORDER 14 RULES 1 AND 2 OF CPC ON THE FILE OF LXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BANGALORE CITY, (CCH NO.73) IN O.S. NO.25506/2013 AT ANNEXURE-A,ETC.

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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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The parties to these petitions are parties to the suit in O.S. No.25506/2013 on the file of the LXXII Additional City Civil and Sessions Judge, Bengaluru [for short, ' the civil Court ']. The petitioner in W.P. No.1742/2019 has impugned the civil Court's order dated 21.12.2018. The civil Court by this order has partly allowed the petitioner's application (I.A. No.3/2018) filed under Order XIV Rule 5 read with

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Section 151 of the Code of Civil Procedure, 1908 [for short 'CPC']. The petitioners in W.P. No.42478/2019 have impugned the civil Court's order dated 14.08.2019. The civil Court by this impugned order has rejected these petitioners' application [I.A. No.3/2019] under Order VI Rule 17 read with Section 151 of CPC.

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The petitioner in Writ Petition No.1742/2019 is the twenty-fourth defendant and the petitioners in W.P. No.42478/2019 are second to eleventh, thirteenth and fourteenth defendants. The parties are referred to as they are arrayed before the civil Court, and insofar as the petitioners in W.P. No.42478/2019, they are referred to as the contesting defendants.

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The plaintiffs' suit in O.S. No.25506/2013, for declaration that they are entitled to one-seventh [1/7^th ] share in the immovable properties described in the plaint schedule and for declaration against certain registered transactions inter se the defendants. A

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concise description of the undisputed facts and the rival pleading are as follows:

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a] It is undisputed that the suit schedule properties were owned by a certain Shambiga and on his demise, his only daughter Smt.Muni @ Thotamuniyamma succeeded to the properties. She and her sons [their family members] have entered into certain transactions, including certain release deeds and Joint Development Agreement for development of one of the suit schedule properties, viz., land bearing Sy.No.14, situated at Sadaramangala village, Krishnarajapura Hobli, Bengaluru East Taluk, Bengaluru [the suit Item No.2, and which is hereinafter referred to as the 'subject property] with the twentyfourth defendant [the petitioner in Writ petition No.1742/2019].

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b] The plaintiffs contend that Smt.Gullamma is also one of the daughters of Smt.Muni @ Thotamuniyamma and they, as the legal heir of Smt. Gullamma, along with twenty-first and twenty-second defendants, are entitled for a share in the suit schedule properties and the transactions excluding them would not be binding.

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c]. The contesting defendants, the petitioners in W.P. No.42478/2019, have filed their written statement denying that the plaintiffs are entitled for a share in the suit schedule properties as asserted by them. The twenty-fourth defendant has filed written statement denying, amongst others, that Smt.Gullamma is one of the daughters of Smt.Muni @ Thotamuniyamma.

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The present controversy, at the instance of the contesting defendants, who have filed the petition in W.P. No.42478/2019, is with they filing an interlocutory application No.3/2019 for amendment of their written

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statement. They propose to amend their written statement for inclusion of the words " is not " in paragraph No.4 of their written statement to introduce a denial by the plaintiffs contention that Smt.Gullamma is also one of the daughters of Smt.Muni @ Thotamuniyamma. The controversy at the instance of the twenty fourth defendant [petitioner in W.P. No.1742/2019] is because the civil Court has allowed the application filed by this defendant under Order XIV of CPC in part refusing to delete Issue Nos.6 and 10.

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5. W.P. No.1742/2019: The twentyfourth

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defendant's grievance is with Issue Nos.6.10 which read as under:

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6. Whether the defendant No.24 proves that Smt.Gullamma is not the daughter of late Smt.Muni @ Thotamuniyamma, as contended by it.

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10. Whether the defendant No.24 proves that, he is entitled for the share in the suit schedule properties along with the plaintiffs .

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This defendant wants these two Issues to be deleted. Firstly, because Issue No.6 casts burden on it to prove in negative that Smt.Gullamma is not the daughter of Smt.Muni @ Thotamuniyamma. Secondly, because Issue No.10 is not relevant to the controversy, as this defendant justifies the right to develop the subject property under the joint development agreement executed by the first to twenty-second defendants as the legal representatives of the original undisputed owner, Smt.Muni @ Thotamuniyamma.

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The civil Court insofar as deletion of Issue No.6 has opined that the controversy is about the paternity of the plaintiffs and the plaintiffs will have the advantage of the presumption as to their legitimacy because of the provisions of Section 112 of the Evidence Act, 1872. As the twenty fourth defendant disputes

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their legitimacy, it must lead necessary evidence to rebut the presumption about the legitimacy. Insofar as deletion of Issue No.10, the civil Court has not even considered the same.

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The learned counsel for the parties are unanimous in their submissions that, given the rival submissions, Issue No.10 would not be necessary and must be deleted. As regards the deletion of Issue No.6, the learned counsel for the parties reiterate their arguments canvassed before the civil Court. However, this Court must observe that the controversy in the present suit essentially is whether Smt.Gullamma is one of the daughters of Smt.Muni @ Thotamuniyamma and it is not about the legitimacy or the paternity of Smt.Gullamma. The respondents-plaintiffs assert that Smt.Gullamma is the daughter of Smt.Muni @ Thotamuniyamma and this is denied by the twenty fourth defendant. The civil Court has framed Issue No.2

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which requires the plaintiffs, who rely upon the Genealogy produced by them, to establish the relationship between Smt.Gullamma and Smt.Muni @ Thotamuniyamma to prove the same.

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The respondents-plaintiffs must discharge the burden as required of them under this Issue and establish the relationship and if they discharge such burden, the onus would shift on the petitioner who denies the relationship. The inter-play between Issue No.2 and Issue No.6 could only be understood in that sense in law and these issues cannot be understood as casting upon the petitioner an independent burden. In which event, the Issue No.6 would be superfluous and therefore should be deleted.

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In W.P. No.42478/2019: The question for consideration in this writ petition is: whether the contesting defendants in seeking to include the words " is not " in paragraph 4 of their written statement as

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proposed by them in their application [I.A. No.3/2019] under Order VI Rule 17 of CPC intend to withdraw an admission. One of the controversy in the suit, as observed earlier is whether Smt.Gullamma is one of the daughters of Smt.Muni @ Thotamuniyamma. This issue crops because the twenty-fourth defendant has taken a specific stand that Smt. Gullamma is not the daughter of Smt.Muni @ Thotamuniyamma. The contesting defendants have filed their written statement denying the respondents-plaintiffs' claim to a share in the suit schedule properties. As regards, the plaintiff's case that Smt. Gullamma is one of the daughters of Smt. Muni @ Thotamuniyamma, they state as follows in paragraph 4 of their written statement:

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"4. ….. It true that the late Smt. Muni @ Thota Muniyamma the Grand mother of plaintiff and defendant No.1 to 20 and the mother of the defendant No.21, 22 but is specifically denied that she was the absolute owner of the suit schedule property bearing Sy.No.5/2 and 14 situated at Sadaramangala Village,

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Krishnarajapura Hobli, Bangalore East Taluk. ……"

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These defendants further state in paragraph 7 as follows:

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"7. All the allegations made in Para 10 of the plaint is hereby specifically denied as false. It is specifically denied that the plaintiffs submit that, late Smt.Gullamma and late Sri.Muniyappa died intestate leaving behind them their children the plaintiffs No.1, 2 and the mother of the plaintiff no.3 to 5 and the defendants No.19 and 20 as the surviving legal heirs to succeed to their estate, as such the plaintiffs and the defendant Nos.19 and 20 are entitled to the share of late Smt.Gullamma who is the absolute owner of 1/7^th undivided share in the suit schedule property. The plaintiffs become the absolute owner to the extent of their mother share in the suit schedule property."

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With the proposed amendment, these defendants want to contend that these averments are a denial of the plaintiffs' assertions that Smt.Gullamma is the daughter of Smt.Muni @ Thotamuniyamma and they state that by

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inadvertence, the words "is not" are not mentioned in paragraph 4 of their written statement.

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The civil Court has rejected the petitioners' application for this amendment for two-fold reasons. The civil Court has opined that these defendants in their written statement have unequivocally admitted that Smt.Gullamma is one of the daughters of Smt.Muni @ Thotamuniyamma and therefore, they cannot by way of an amendment resile from their admission. The civil Court has also opined that the amendment is sought after a long period of five years and eight months, and their pleadings have prevailed over this period with the trial having commenced and therefore, the amendment is belated and due diligence is not explained.

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The learned counsel for the petitioners relies upon the aforementioned two paragraphs, to reiterate these defendants case in the application for amendment that they, in effect, have denied the relationship as

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asserted by the plaintiffs between Smt.Gullamma and Smt.Muni @ Thotamuniyamma and he also submits that even if these or the other averments in the written statement can be construed as an admission, in view of the decision of the Hon'ble Supreme Court in Ram

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Niranjan Kararia vs. Sheo Prakash Karajari and others reported in (2015) 10 SCC 203 , these defendants can amend written statement to clarify their plea. He emphasizes that the proposed amendment is only a matter of clarification.

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The learned counsel for the plaintiffs,

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without disputing the proposition that a party could by way of an amendment be permitted to clarify an admission, submits that the contesting defendants are categorical in their statement that Smt.Gullamma is one of the daughters of Smt.Muni @ Thotamuniyamma, and the proposed amendment is only to take away this categorical and unambiguous admission. The learned

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counsel emphasizes that the proposed amendment cannot be construed as clarifying the defence. Further, the learned counsel, in support of the submissions that the contesting defendants are categorical in their admission of relationship between Smt.Gullamma and Smt.Muni @ Thotamuniyamma, draws the attention of this Court to the paragraph 24 as also paragraph 26 of their written statement.

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The question for this Court's consideration is: whether the petitioners have, in clear and certain terms and without any ambiguity, admitted the relationship between Smt.Gullamma and Smt.Muni @ Thotamuniyamma, and if they have so admitted the relationship should the proposed amendment be allowed as clarifying their stand.

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This Court must observe that the petitioners propose to amend the written statement with the inclusion of the words "is not" to take the stand that

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they have denied the relationship as aforesaid. These petitioners have stated as follows in paragraph 24 and in continuation, they have also stated in paragraph 26 of their written statement that the twenty first and twenty second defendants, who according to the plaintiffs are also the daughters of Smt.Muni @ Thotamuniyamma, have joined in the execution of release deed dated 09.11.2012:

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"24. The defendants' No.1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 & 15 respectfully submits that one Shambiga was the absolute owner in possession and enjoyment of the suit schedule properties who is none other than the father of Muni @ Thotamuniyamma. The Said Shambiga had only daughter by name Smt. Muni @ Thotamuniyamma. After the death of Shambiga, the said Muni @ Thotamuniyamma had succeeded the estate of her father in respect of the schedule properties. The said Muni @ Thotamuniyamma was in possession and enjoyment of the suit schedule property by growing agricultural crops in the suit schedule properties. These defendants further submit that the said Muni w/o Chavudiga @ Chowdappa had children, 3 sons namely 1) Doddaiah 2) Chikkanna 3) Muniswamy and

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daughters namely are Smt. Muniyamma, Smt. Gullamma, Smt. Krishnamma.

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x x x

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26. These defendants respectfully submits that the two daughters of the Muni W/o Chavudiga @ Chowdappa who is defendant No. 21 to 22 have jointly executed registered release deed dated 09.11.2012, registered vide document No.BDH-104626-2012-13, stored in CD No.BDHD91, Book No.1, registered in the office of the sub registrar, Bidarahalli, Bangalore. The defendants' No.21 and 22 have relinquished their right title and interest over the ITEM No.2 schedule property in favour of the defendant No.1, 11, 14 and 15. Therefore these defendants become owners of the Sy.No.14 which is Item No.2 of the schedule property. The revenue entries have been transferred to the names of these defendants No.1, 11, 14 and 15 and they are in exclusive possession and enjoyment of the schedule property Item No.2. Therefore, there is no availability of property for partition in Item No.2 of the schedule property."

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These averments must be read in

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conjunction with what is stated in paragraph Nos.4 and 7, which are extracted ( supra ). On a careful

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consideration of these two sets of averments in the written statement, this Court is of the opinion that these defendants have categorically admitted that Smt.Gullamma is one of the daughters of Smt.Muni @ Thotamuniyamma. They cannot, in the light of this categorical admission, bring any amendment which tantamount to resiling from this unequivocal admission of relationship. The inclusion of the words "is not", as now suggested in paragraph 4 of the written statement, would not be innocuous and cannot be permitted as a clarification. Therefore, the amendment cannot be permitted even on the ground that it is for clarification. The Hon'ble Supreme Court in the decision of Ram Niranjan Kararia supra has reiterated whether an amendment would be an explanation or clarification would depend upon the nature and the character of such explanation or clarification.

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In the light of the foregoing, the following:

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ORDER

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