Allowed

Smt. Sakamma v. M. N. Raju

Karnataka HC11 Nov 2021WP/6913/2019

Case brief

AI extract

What is this about?

This High Court allowed a writ petition under Article 226 quashing the rejection of an amendment application in a partition suit. The court held that the amendment, which corrected the property extent to 20 guntas as per an earlier compromise decree, was necessary for effective adjudication of the real controversy involving the appellant's share.

What did the court decide?

The petition was allowed; the impugned order of the Senior Civil Judge rejecting I.A.No.VIII was quashed, and the amendment application was permitted subject to the court's observations.

Smt. Sakamma Vs M. N. Raju — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF NOVEMBER 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.6913/2019 (GM-CPC)

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BETWEEN :

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1 . SMT. SAKAMMA AGED ABOUT 65 YEARS, WIFE OF LATE NANJAIAH.R, RESIDING AT N.E.S. EXTENSION, SULTHAN ROAD, MALAVALLI.

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SMT. MANGALAMMA AGED ABOUT 50 YEARS, WIFE OF MAHADEVA, RESIDING AT "ANUGRAHA NILAYA", 4^TH MAIN, 2^ND CROSS, BEGUR ROAD, HOGASANDRA, BENGALURU-560 068.

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M. N. PRABHU AGED ABOUT 46 YEARS, SON OF LATE NANJAIAH.R, RESIDING AT N.E.S. EXTENSION, SULTHAN ROAD, MALAVALLI.

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SMT. RATNAMMA AGED ABOUT 44 YEARS, WIFE OF CHANDRU, RESIDING AT #09, 2^ND CROSS, 4^TH MAIN,

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BALAJI LAYOUT, HONGASANDRA LAND MARK, SAI PUBLIC SCHOOL, BENGALURU-560 068.

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SMT. JAYA AGED ABOUT 42 YEARS, WIFE OF RAVI, RESIDING AT KANAKAPURA TALUK, KODIHALLI HOBLI, HERADAMPPANAHALLI POST, RAMANAGARA DISTRICT.

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M. N. NAGARAJA AGED ABOUT 32 YEARS, SON OF LATE NANJAIAH.R,

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M. N. HARISH AGED ABOUT 26 YEARS, SON OF LATE NANJAIAH.R, BOTH RESPONDENT NOS.6 AND 7 ARE RESIDING AT N.E.S. EXTENSION, SULTHAN ROAD, MALAVALLI. ... PETITIONERS (BY SRI. C N SATYANARAYANA SHASTRY, ADVOCATE)

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AND :

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M. N. RAJU SON OF LATE NANJAIAH.R, N.E.S. EXTENSION, SULTHAN ROAD, MALAVALLI. ... RESPONDENT (BY SRI. T.P.VIVEKANANDA, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER VIDE ANNEXURE-'B' DATED 07.01.2019 PASSED BY THE LEARNED SENIOR CIVIL JUDGE & JMFC, MALAVALLI IN I.A.NO.VIII IN O.S.NO.43/2016 AND ETC.

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

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O R D E R

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The petitioners, who are the plaintiffs in O.S.No.43/2016 on the file of the Senior Civil Judge and JMFC, Malavalli (for short, ' the civil Court '), have impugned the civil Court's order dated 07.01.2019. The civil Court by this order dated 07.01.2019 has rejected the petitioners' application (I.A.No.VIII) under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ' CPC' ) for amendment of the plaint.

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The civil Court has rejected the petitioners' application for amendment observing that the

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petitioners in the application have unnecessarily mentioned the details of the earlier proceedings mentioning I.As, date of disposals, the names of the advocates. The civil Court has further observed that the proposed amendment runs into pages and the amendment would not be necessary for adjudication of the real controversy between the parties. The civil Court has also observed that the petitioners may have filed this application to avoid adjudication and to protract the proceedings, and the amendment would lead to complications and confusions prolonging the final adjudication.

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The undisputed facts are that Sri. Rachaiah is the propositus and during his lifetime, one of his sons - Sri. Channappaji - filed a suit for partition in O.S.No.11/1993. Sri. Rachaiah died on 12.06.1993 i.e., during the pendency of the suit. After his demise, and certain other proceedings referred to by the

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petitioners in their application for amendment, his sons viz ., Sri. Chanappaji, Sri.Lingappaji and Sri. Nanjaiah have filed a compromise petition and the suit is accordingly decreed. The petitioners and the respondent are the wife and children of Sri. Nanjaiah. The respondent, who is the eldest son of Sri. Nanjaiah, has filed an application for his impleadment in this suit in O.S.No.11/1993 asserting that his grandfather - Sri. Rachaiah - had bequeathed to him 1 acre 20 guntas in Sy.No.25 of Malavalli Taluk, Mandya District under his Last Will and Testament dated 18.03.1993¹ . This application is ultimately rejected and thereafter, he has filed suit in O.S.No.203/1997 for vindication of his rights under the Will dated 18.03.1993 executed in his favour by Sri. Rachaiah. This suit is decreed, but the appeal against this decree is pending in R.A.No.23/2007. The petitioners, as also

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1 The records are not consistent about the date of the Will

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Sri. Chanappaji and Sri. Lingappaji, are parties to such proceedings.

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There is no dispute that one of the questions

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that will have to be decided in R.A.No.23/2007 is whether there could have been a compromise amongst the sons of Sri. Rachaiah including the 1 acre 20 guntas in Sy No. Sy.No.25 of Malavalli Taluk, Mandya District if there was a duly executed Will by him bequeathing such in favour of the respondent. The petitioners have filed the present suit in O.S.No.43/2016 after the demise of Sri. Nanjaiah for partition of the properties allotted to him as per the compromise decree in O.S.No.11/1993 including this extent of 1 acre 20 guntas in Sy.No.25 of Malavalli Taluk, Mandya District.

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The parties in the present suit in O.S.No.43/2016 have completed their pleadings and evidence is also commenced. Thereafter, because of certain questions in cross examination as regards the

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earlier proceedings in O.S.No.11/1993 and in O.S.No.203/1997 (which is pending in R.A.No.23/2007), the petitioners have filed the present application for deletion of certain paragraphs and inclusion of additional paragraphs. The petitioners want to delete paragraph Nos.4 and 5 and include in its place paragraph Nos.4 to 8 as proposed. In addition, the petitioners want to substitute the description of the property in Schedule 'B'.

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The petitioners have presently described the Schedule 'B' property as measuring 1 acres 20 guntas in Sy.No.25 of Malavalli Taluk, Mandya District, but now want to substitute this description restricting the extent to 20 guntas with definite measurements essentially because Sri. Nanjaiah is allotted only 20 guntas in Sy.No.25 of Malavalli Taluk, Mandya District as per the compromise decree in O.S.No.11/1993.

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Sri. C.N.Satyanarayana Shastry, the learned

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counsel for the petitioners, submits that the true intent in filing the amendment is neither to protract nor obfuscate the controversy in the suit but to bring into focus the real controversy for adjudication insofar as the parties’ rights to the land in SyNo.25 of Malavalli Taluk, Mandya District. He elaborates that there cannot be any dispute about allotment of 20 guntas in Sy.No.25 of Malavalli Taluk, Mandya District [as now described in the proposed amendment] to Sri. Nanjaiah as per the aforesaid compromise decree, and on his demise this 20 guntas in Sy.No.25 of Malavalli Taluk, Mandya District will have to be partitioned amongst the petitioners and the respondent, who are his legal representatives because there is no dispute that he has died interstate. He emphasizes that the petitioners were bonafide in mentioning the extent as 1 acre 20 guntas and civil Court has erred in not considering the proposed amendment in the light of the settled law that those

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amendments which are necessary for effective and complete adjudication of the real controversy must be allowed.

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Sri. T.P.Vivekananda, the learned counsel for

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the respondent, on the other hand, submits that the proposed amendment is intended to introduce questions that are decided in O.S.No.203/1997 but pending in appeal in R.A.No.23/2007 for reconsideration. Sri. Rachaiah’s sons, including Sri.Nanjaiah under whom the parties to the present suit assert rights, could not have partitioned the properties including the extent of 1 acre 20 guntas in Sy.No.25 of Malavalli village, Mandya Taluk in view of the Will dated 18.03.1993 executed by him in favour of the respondent [his grandson]. If the amendment is permitted, the questions which are concluded by the original Court in O.S.No.203/1997, but pending in the appeal in

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R.A.No.23/2007, will have to be revisited even this suit leading to confusion.

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It is obvious from Sri. T.P.Vivekananda's

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submissions that he does not contest the settled law that if an amendment is necessary for complete and effective adjudication of the real dispute between the parties, the same should be allowed. But his apprehension is that this amendment would reopen the questions which are subject matter of the suit in O.S.No.203/1997. His apprehension, in this Courts' considered view cannot deter the merits of the proposed amendment especially the substitution of the Schedule 'B' to include/confine the extent to 20 guntas in Sy.No.25 of Malavalli Taluk, Mandya District when considered in the light of material circumstances of the case.

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If ultimately it is decided in the proceedings

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commenced in O.S.No.203/1997 [pending in R.A.No.23/2007] that the compromise decree in O.S.No.11/1993 inter se the children of Sri. Rachaiah [excluding the respondent, who claims to be a legatee under the Will dated 18.03.1993 executed by Sri. Rachaiah] must prevail, the extent of 20 guntas in Sy.No25 of Malavalli Taluk, Mandya Village allotted to Sri. Nanjaiah must be partitioned inter se the parties to the present suit as it is nobody's case that Sri. Nanjaiah had bequeathed or otherwise dealt with this extent during his lifetime.

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This material circumstance, crucial for complete and effective adjudication of the entire controversy between the parties, has been overlooked and therefore, this Court's interference would be necessary. However, this Court must observe that this amendment is allowed to provide for a contingency that

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could arise subject to the decision commenced in O.S.No.203/1997. Hence, the following:

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ORDER

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The petition is allowed. The impugned order dated 07.01.2019 in O.S.No.43/2016 on the file of the Senior Civil Judge, Malavalli is invalidated and the petitioners' application (I.A.No.VIII) under Order VI Rule 17 read with Section 151 of CPC is allowed permitting them to carry out amendment but subject to the observations made herein.

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SD/- JUDGE

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Smt. Sakamma v. M. N. Raju

Case brief

What is this about?

What did the court decide?

Smt. Sakamma v. M. N. Raju

Case brief

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