Dismissed

A T Govindaraju v. a T Savithramma

Karnataka HC8 Jun 2022WP/7071/2022

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition under Article 227 challenging the Trial Court's rejection of an application to amend a partition plaint. The Trial Court correctly held that deletion of an item sold prior to filing the suit is not permissible and the matter of necessity awaits trial.

What did the court decide?

The writ petition was dismissed. The impugned order of the Trial Court was allowed to stand.

A T Govindaraju Vs a T Savithramma — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF JUNE, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 7071 OF 2022 (GM-CPC)

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BETWEEN:

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A T GOVINDARAJU AGED ABOUT 58 YEARS, S/O LATE THIMMEGOWDA A NO.550, 14TH MAIN ROAD, B BLOCK, VIJAYANAGARA 3RD STAGE MYSURU-570017

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A T MANJUNATH AGED ABOUT 55 YEARS S/O LATE THIMMEGOWDA A NO.17, 2ND MAIN ROAD, 7TH CROSS ROAD, LOKANAYAKANAHAGARA HEBBAL MAIN ROAD, METAGALLI POST MYSURU-570016

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...PETITIONERS

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(BY SRI. GIRISHA N R, ADVOCATE)

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AND

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A T SAVITHRAMMA AGED ABOUT 75 YEARS D/O LATE THIMMEGOWDA A W/O LATE SHIVEGOWDA R/AT KATTERI VILLAGE, ARALAKUPPE POST NEAR KAALABHAIRAVESHWARA TEMPLE

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PANDAVAPURA TALUK MANDYA DISTRICT-571434

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A T LEELAVATHI AGED ABOUT 6 YEARS D/O LATE THIMMEGOWDA A W/O RAMEGOWDA CHALUVARASANA KOPPAL ENNEHOLE KOPPAL POST PANDAVAPURA TALUK MANDYA DISTRICT-571434

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A T SHREENIVASU AGED ABOUT 65 YEARS, S/O LATE THIMEMGOWDA A R/AT KATTERI VILLAGE, ARALAKUPPE POST, PANDAVAPURA TALUK MANDYA DISTRICT-571434

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A T GOPALAKRISHNA AGED ABOUT 51 YEARS S/O LATE THIMMEGOWDA A R/AT KATTERI VILLAGE ARALAKUPPE POST PANDAVAPURA TALUK MANDYA DISTRICT-571434

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SHANTHAMMA AGED ABOUT 59 YEARS W/O LATE A T VENKATARAMU R/AT KATTERI VILLAGE ARALAKUPPE POST PANDAVAPURA TALUK MANDYA DISTRICT-571434

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K V SHESHADRI AGED ABOUT 43 YEARS S/O LATE A T VENKATARAMU R/AT KATTERI VILLAGE

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ARALAKUPPE POST PANDAVAPURA TALUK MANDYA DISTRICT-571434

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K V RAGHU AGED ABOUT 41 YEARS S/O LATE A T VENKATARAMU R/AT KATTERI VILLAGE ARALAKUPPE POST PANDAVAPURA TALUK MANDYA DISTRICT-571434

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K V SHARADA AGED ABOUT 39 YEARS D/O LATE A T VENKATARAMU W/O LATE RAMAKRISHNEGOWDA C/O LATE SHIVEGOWDA R/AT KATTERI VILLAGE ARALAKUPPE POST PANDAVAPURA TALUK MANDYA DISTRICT-571434

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...RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD 23.2.2022 AT ANNX-A AND ALLOW THE INTERLOCUTORY APPLICATION NO. 9 FILED UNDER ORDER VI RULE 17 IN O.S.NO.63 OF 2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA AND ETC.,

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

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ORDER

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The captioned writ petition is filed by the

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plaintiffs questioning the order dated 23.02.2022

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passed by the learned Additional Senior Civil Judge and JMFC, Pandavapura, on I.A.NO.9 filed under Order VI Rule 17 read with Section 151 of CPC in O.S.No.63/2018 as per Annexure-A seeking

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amendment of plaint.

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The present petitioners have instituted a suit for partition and separate possession. Pending suit, when the matter was posted for cross of D.W.1, the present petitioners have filed an application seeking amendment of plaint to delete item No.3. The said application was strongly resisted by the defendants. The learned Trial Judge has rejected the application. While rejecting the application, learned Trial Judge has taken note of the fact that first plaintiff has sold item No.3 in favour of one Smt.Prabhavathi under registered sale deed dated 12.02.2018. The learned Trial Judge has also taken note of the fact that this alienation is done five months prior to filing of the

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suit. Defendant Nos.5 to 8 have specifically contended that there was already severance in the family in view of partition and in the said partition, item No.3 was allotted to plaintiff’s share. Therefore, learned Trial Judge has denied to grant the prayer sought in the application.

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Heard learned counsel for the petitioners. Perused the order under challenge.

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Petitioners have instituted a suit for partition by specifically contending that suit schedule properties are joint family ancestral properties. The present petitioner No.1 admitted that he has alienated item No.3 just prior to filing of the suit. As rightly held by learned Trial Judge, defendant Nos.5 to 8 contended that there was severance in the family and in the said family partition, item No.3 was allotted to plaintiff No.1, while plaintiffs contended that item No.3 property was sold on behalf of family for family

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necessities. Even alienated property has to be included while seeking partition, as the alienation would bind the transferees and the same has to be adjusted and allotted to one who has indulged in alienation of the joint family properties. The question as to whether item No.3 was sold for family necessity is a matter of trial. Therefore, plaintiffs cannot seek deletion of item No.3 by way of amendment. Order under challenge is in accordance with law. Hence, I proceed to pass the following;

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ORDER

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The writ petition is devoid of merits and stands

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dismissed .

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Sd/JUDGE

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HDK

A T Govindaraju v. a T Savithramma

Case brief

What is this about?

What did the court decide?

A T Govindaraju v. a T Savithramma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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