Partly allowed

G Janaki v. Mr. a G Seshappa

Karnataka HC1 Dec 2021WP/19266/2021

Case brief

AI extract

What is this about?

The Karnataka High Court allowed the writ petition in part, interfering with the lower court's rejection of an amendment application. It permitted inclusion of schedule 'E' property but not schedule 'F' property, allowing respondents to raise defenses regarding the claim.

What did the court decide?

The impugned order is modified to permit inclusion of only schedule 'E' property with liberty to respondents to raise all available defenses.

G Janaki Vs Mr. a G Seshappa — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST 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.19266/2021 (GM-CPC)

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BETWEEN :

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SMT. G JANAKI W/O SRI R BABU, D/O SRI OBALEH, AGED ABOUT 48 YEARS, R/A NO.558, 11TH CROSS II MAIN MICO LAYOUT, BTM II STAGE, BANGALORE-560076.

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SRI G SRINIVASALU S/O SRI G. OBALESH, AGED ABOUT 44 YEARS, R/A 5,1-B, MAIN ROAD, OPPOSITE TO AROGYA KENDRA, N S PALYA, BTM 2ND STAGE, BANGALORE-560076.

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SMT MALLAMMA W/O SRI. MARAPPA, D/O SRI.A.B.GOPALAPPA, AGED ABOUT 75 YEARS, R/AT 59/1, 1ST MAIN, NANJAPPA LAYOUT, AUDGODI, BANGALORE-560030 SINCE DEAD REPRSENTED BY HER LRS,

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3(A) SMT. NEELAMMA, W/O LATE MUNI CHINNAPPA, AGED ABOUT 56 YEARS, R/A 375/8, 4TH CROSS, 3RD MAIN ROAD, BANGALORE-560076.

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3(B)	SRI A M SRINIVASA S/O LATE MARAPPA, AGED ABOUT 52 YEARS,
	R/A 59/1, 1ST MAIN, NANJAPPA LAYOUT, ADUGODI, BANGALORE-560030.
4.	SMT LALITHA W/O SRI SRINIVAS, D/O SRI.A.B.GOPALAPPA, AGED ABOUT 75 YEARS,
	R/A. 1-B, 3RD CROSS, GANGAMMA TEMPLE STREET, V B LAYOUT,
	K.R.PURAM NEW EXTENSION, BANGALORE-560036 .... PETITIONERS

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(BY SRI. VENKATESH R, ADVOCATE)

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AND :

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MR. A G SESHAPPA AGED ABOUT 76 YEARS, S/O A.B.GOPALAPPA,

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MRS BHAGYALAKSHMI AGED ABOUT 61 YEARS, W/O A.G. SESHAPPA,

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MR A S BHASKAR AGED ABOUT 51 YEARS, S/O MR.A.G. SESHAPPA,

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MR A B VARSHA AGED ABOUT 20 YEARS, S/O A.S.BHASKAR,

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MASTER A B SAGAR AGED ABOUT 17 YEARS, SINCE MINOR REPRESENTED BY HIS FATHER SRI A S BHASKAR,

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MR A S MOHAN AGED ABOUT 48 YEARS, S/O A.G.SESHAPPA,

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MR A S RAVI AGED ABOUT 45 YEARS, S/O A. G SESHAPPA,

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MRS R LATHA AGED ABOUT 44 YEARS, W/O.A.S. BHASKAR,

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MRS VEENA AGED ABOUT 40 YEARS, W/O A.S. MOHAN, RESPONDENT NOS.1 TO 9 ARE RESIDING AT NO.4,5,7,6 HOSUR ROAD, ADUGODI, BANGALORE-560030.

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MRS A M LAKSHMI DEVI AGED ABOUT 59 YEARS, W/O.A.G.MUNICHINAPPA,

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MRS A M SAVITHA AGED ABOUT 38 YEARS, D/O A G MUNICHINAPPA,

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MRS A M CHANDRASHEKAR AGED ABOUT 36 YEARS, S/O A.G.MUNICHINAPPA, RESPONDENT NOS.8 TO 13 ARE RESIDING AT NO.7, HOSUR ROAD, ADUGODI, BANGALORE-560030.

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MR A G KRISHNA AGED ABOUT 64 YEARS, S/O MR. A.B.GOPALAPPA,

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MRS THULASAMMA AGED ABOUT 52 YEARS, W/O A.G.KRISHNA,

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MISS A K DEVIKA AGED ABOUT 32 YEARS, D/O A .G KRISHNA,

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MISS A K TEJASWINI AGED ABOUT 30 YEARS, D/O A.G.KRISHNA, RESPONDENT NOS.14 TO 17 ARE RESIDING AT NO.9, ADUGODI, BANGALORE-560030.

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MR A G MUKUNDA AGED ABOUT 2 YEARS, S/O MR.A.B.GOPALAPPA,

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MASTER A M DEEPAK AGED ABOUT 27 YEARS, S/O MR.A. G MUKUNDA,

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MR B BABY @ LAKSHMI DEVI AGED ABOUT 51 YEARS, W/O MR.A.G.MUKUNDA,

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MR A M GIRISH AGED ABOUT 31 YEARS, S/O A G MUKUNDA, RESIDING AT NO.8, HOUSR ROAD, ADUGODI, BANGALORE-560030.

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MR A G GOVERDHANA AGED ABOUT 56 YEARS, S/O MR.A.B.GOPALAPP,

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22. MRS G KRISHNAVENI AGED ABOUT 47 YEARS, W/O MR.A.G.GOVERDHANA,

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MR A G HARISH AGED ABOUT 31 YEARS, S/O MR A G GOVERDHANA,

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MR A G SURESH AGED ABOUT 28 YEARS, S/O MR.A. G. GOVERDHANA, RESPONDENT NOS.22 TO 25 ARE RESIDING AT NO.8, HOSUR ROAD, ADUGODI, BANGALORE-560030.

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SMT G BHARATHI AGED ABOUT 50 YEARS, D/O SRI OBALESH, W/O SRI. RAMESH, R/A NO.61, 3RD CROSS, 1^ST A MAIN BTM 2^ND STAGE, NEAR SHANTINIKETHAN MICO LAYOUT, BANGALORE-560076.

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... RESPONDENTS

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(BY SRI. M.J.ALVA, ADVOCATE FOR R11 TO R25; SRI. A.G.SHIVANNA, ADVOCATE FOR R1 TO R10)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER VIDE ANENXURE-A VIDE IA NO.22 PASSED ON 24.09.2021 IN O.S.NO.6470/2011, PENDING ON THE FILE OF THE LVIII ADDL CITY CIVIL AND SESSIONS JUDGE BANGALORE.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioners are the plaintiffs in

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O.S.No.6470/2011 on the file of the LVIII Additional City Civil and Sessions Judge, Bengaluru (for short, ' the civil Court '). The petitioners have filed this suit in O.S.No.6470/2011 for partition contending that they are the daughters of the propositus - Sri. A.B.Gopalappa and the suit schedule properties are properties which will have to be divided amongst his children viz ., five [5] sons and three [3] daughters/their legal heirs who are the parties to the proceedings.

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The petitioners have listed three [3]

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immovable properties in the plaint schedule. After the cross examination of the witness examined on behalf of the defendants, who are the legal heirs of the sons of the propositus, the petitioners have filed their application (I.A.No.22) under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 to

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include two immovable properties described as schedule 'E' and 'F'.

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In support of this application the petitioners contend that they were not aware that these properties were joint family properties available for partition until the evidence of the defendants' witness, DW.1. The respondents have contested this application asserting that the immovable property described as schedule 'F' in the application is none other than the suit schedule 'B' property and insofar as the immovable property described as schedule 'E' in the application, it is contended that it is a non-existing property. The respondents also refer to the delay in filing the application.

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The civil Court has rejected the application by its reason which reads as under:

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" The plaintiffs have filed U/o 6 Rule 17 of CPC to amend the plaint by incorporating the schedule 'E' & 'F' properties.

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The Ld. Counsels for Defendants filed objections and opposed the application.

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The Plaintiffs have not produced the documents that 'E' and 'F' schedule properties are in existence. Simply filed this application stating that these properties are joint family properties of the Plaintiffs and Defendants. In this regard, Plaintiffs have not produced the documents to show that 'E' & 'F' schedule properties are the joint family properties of Plaintiffs and Defendants.

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Perused the previous order sheet, it reveals that this is 10 years old case and Plaintiffs are unnecessarily protract the case in one or the other way.

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Hence, I.A.No.22, U/o. 6 R 17 of CPC is hereby rejected.

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The learned counsel for the petitioners is not able to seriously contest the respondents' defence that schedule 'F' is the same as the suit schedule 'B' property. If the petitioners cannot contest this objection,

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they cannot succeed in their application insofar as inclusion of this property and they can only take advantage of the respondents' contention in this regard. As regards the other property which is described as schedule 'E' in the application, though it is asserted by the respondents that it is non-existent, the petitioners rely upon the partition deed dated 30.11.2006 executed amongst the legal heirs of Sri. A.G.Munichinnappa, who is one of the sons of the propositus to establish the identity of this property which is described as Item No.2 in schedule 'D' and is allotted to the share of Sri. A.G. Govardhana (the second defendant).

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Sri. M.J.Alva and Sri. A.G.Shivanna, the

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learned counsels for the respondents, submit that the partition amongst the sons of the propositus is way back in the year 1950 and there are other partition amongst the legal heirs and therefore, the reliance on the partition deed dated 30.11.2006 is not justified.

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However, the question whether the petitioners can rely upon the Partition Deed dated 30.11.2006 is a matter for final adjudication. This Court is of the considered view that the petitioners' request for amendment of the plaint to include immovable property described in schedule 'E' must be considered in the light of the settled law that amendment, even after commencement of trial, could be permitted if it is necessary for effective and complete adjudication and the other side is not put to injustice.

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If one of the properties partitioned during

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pendency of the proceedings could be traced to the title in propositus, its inclusion with the other properties would be necessary for effective adjudication of the real controversy in the suit which is for partition. The respondents would be at liberty to resist the prayer for partition of this property or any other suit schedule property on all ground available to them including the

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ground that the claim for partition of this property as of the date of the application stood excluded by the law of limitation. The civil Court has not considered these circumstances and therefore, this Court must interfere. For the foregoing, the following:

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ORDER

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The petition is allowed in part, and the impugned order dated 24.09.2021 in O.S.No.6470/2011 on the file of the LVIII Additional City Civil and Sessions Judge, Bengaluru is modified permitting the petitioners to include only schedule 'E' property mentioned in the plaint with liberty to the respondents to take all defense as against inclusion of this property.

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JUDGE

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Sd/-

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G Janaki v. Mr. a G Seshappa

Case brief

What is this about?

What did the court decide?

G Janaki v. Mr. a G Seshappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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