Allowed

Smt. Govardhini Jayakumar Thotambailu v. Dr. K v Chidananda

Karnataka HC6 Nov 2023WP/36506/2019

Case brief

AI extract

What is this about?

The Single Judge allowed the writ petition quashing the lower court's rejection of an amendment application. The Writ Court observed that the civil court failed to consider all grounds and the petitioner's foreign residence, granting liberty to file a better application.

What did the court decide?

Writ petition allowed with liberty to the petitioner to file a better application for amendment of plaint, defenses open to respondents, and observation on the standard of due diligence.

Smt. Govardhini Jayakumar Thotambailu Vs Dr. K v Chidananda — Partition | Karnataka HC (2023)

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NC: 2023:KHC:39403 WP No. 36506 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 36506 OF 2019 (GM-CPC)

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BETWEEN:

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SMT. GOVARDHINI JAYAKUMAR THOTAMBAILU AGED ABOUT 60 YEARS R/A NO.6234, STEINWAY DRIVE JAMES VILLE NEWYORK-13078-3405 USA

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…PETITIONER

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(BY SRI. CHETAN JADHAV, ADVOCATE)

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AND:

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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DR. K V CHIDANANDA S/O LATE KURUNJI VENKATARAMANA GOWDA AGED ABOUT 60 YEARS VENKATESH NILAYA SRIRAMPET, SULLIA DK DISTRICT-574239

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DR K V RENUKA PRASAD S/O LATE KURUNJI VENKATARAMANA GOWDA AGED ABOUT 57 YEARS VENKATESH NILAYA SRIRAMPET, SULLIA DK DISTRICT-574239

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…RESPONDENTS

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(BY SMT. NEERAJA KARANTH, ADVOCATE FOR R1; SRI. NAVEEN KUMAR, ADVOCATE FOR

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2 - NC: 2023:KHC:39403 WP No. 36506 of 2019

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SRI. A.MADHUSUDHAN RAO, ADVOCATE FOR R2)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 12.04.2019 AS PER ANNEXURE-A PASSED IN THE COURT OF THE SENIOR CIVIL JUDGE, MADIKERI, IN O.S.NO.145/13 ON I.A.NO.10, REJECTING THE APPLICATION FILED BY THE PETITIONER INTERALIA ALLOW THE SAID APPLICATION.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is by the plaintiff in O.S.No.145/2013 on the file of the Senior Civil Judge, Madikeri [for short, ‘ the civil Court ’]. The petitioner is aggrieved by the civil Court’s order dated 12.04.2019, and the civil Court by this order has rejected the petitioner’s application [I.A.No.10] for amendment under Order VI Rule 17 of the Code of Civil Procedure, 1908 [for short, ‘ the CPC’ ]. The civil Court, in the light of the indisputable position that the application is filed after the completion of the evidence, has rejected the same on the ground that the petitioner has not satisfied the requirements as envisaged under proviso to Order VI Rule 17 of CPC

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NC: 2023:KHC:39403 WP No. 36506 of 2019

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with the observation that the burden of proving the Last Will and Testament would be on the respondents as they have propounded the same and the pleadings in that regard may not be strictly necessary, especially at a belated stage in the suit.

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The petitioner’s suit in O.S.No.145/2013 is for partition, and it remains undisputed that the respondents, who are the petitioner’s brothers, have set up the defense of bequeath by the father and the parties have led evidence in the light of such pleadings. The petitioner proposes to amend the plaint to contend that the execution of this Last Will and Testament is surrounded by suspicious circumstances and therefore, cannot prevail. If the respondents have opposed the application for amendment of the plaint as regards suspicious circumstances contending that the entire burden relies upon them, it would also be trite that the

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NC: 2023:KHC:39403 WP No. 36506 of 2019

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petitioner must lead evidence to discharge onus that could be consequential to the shifting of onus .

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The petitioner, apart from stating in support of the application for the amendment, that the respondents have purchased certain properties utilizing joint family nucleus and transferred those properties in favor of their respective spouses, has stated that she has come to know about these transactions from the ITRs which are marked as exhibits without furnishing the details of those properties. The learned counsel for the petitioner proposes to contend that the petitioner, who ordinarily resides outside India, could be constrained in securing the details at the time of filing the application.

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The learned counsel for the respondents cannot dispute that for complete and effective adjudication, all the properties which could be termed/called the joint family properties because

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5 - NC: 2023:KHC:39403 WP No. 36506 of 2019

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they are purchased from an alleged joint family nucleus, must be brought on record for complete and effective adjudication and in the event those details are not brought on record, the plaint can be rejected on the ground that it could be a plaint for partial partition.

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These two aspects viz ., whether the pleadings would suffice in the event the petitioner must discharge the onus of establishing circumstances that show suspicion and whether all the properties are brought on record, have not been considered by the civil Court and the application is rejected solely on the ground of due diligence. The petitioner’s case for amendment is pivoted on the assertion that the respondents have not filed detailed written statement, and the question of due diligence must therefore be examined in the light of this assertion.

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NC: 2023:KHC:39403 WP No. 36506 of 2019

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Further, the petitioner has filed a suit for partition listing as many as 67 immovable properties and certain movables as well, and the civil Court, subject to the Issues that are framed, will have to decide whether there was a joint family nucleus and whether such nucleus is utilized by the respondents to purchase immovable properties, including those properties that are movables . The application does not contain all the details as regards the properties that are purchased from the so called joint family nucleus. The overarching consideration must be to enable complete and effective adjudication.

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In the peculiarities of this case, where it is not disputed that the petitioner is generally a resident outside India, this Court is of the considered view that the petition must be disposed of with liberty to the petitioner to file a better application for amendment leaving all defenses open to the respondents to contest the same, and this Court

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NC: 2023:KHC:39403 WP No. 36506 of 2019

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must also observe that the civil Court must examine the question of due diligence in the peculiarities of this case and the circumstances taken note of by this

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Court in the course of this order.

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The petition stands disposed of accordingly. In

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view of disposal of the main petition, all pending I.As stand disposed of.

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SD/JUDGE

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Smt. Govardhini Jayakumar Thotambailu v. Dr. K v Chidananda

Case brief

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Smt. Govardhini Jayakumar Thotambailu v. Dr. K v Chidananda

Case brief

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