Partly allowed

Smt Kanthamma v. Muniraju

Karnataka HC5 Dec 2024WP/10329/2019

Case brief

AI extract

What is this about?

High Court allowed writ petitions challenging a refusal to amend a partition suit. It permitted inclusion of additional property and set aside the rejection of an amendment application, while dismissing a separate petition to implead purchasers as they are not necessary parties in partition suits.

What did the court decide?

Petition challenging rejection of property inclusion in partition suit allowed; application to implead purchasers dismissed with costs.

Smt Kanthamma Vs Muniraju — Partition | Karnataka HC (2024)

¶1

NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 5^TH DAY OF DECEMBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 10329 OF 2019 (GM-CPC)

¶7

C/W

¶8

WRIT PETITION NO. 10325 OF 2019 (GM-CPC)

¶9

IN WP No. 10329/2019

¶10

BETWEEN:

¶11

SMT KANTHAMMA, W/O MUNIANJANAPPA, R/AT NO.4, SRI MANJUNATHA NILAYA, 7TH CROSS, RR OIL MILL ROAD, SHAMANNA GARDEN, BANGALORE - 560 084.

¶12

SMT.BHAGYALAKSHMI, W/O GOVINDARAJU, C/O JAYAMMA, R/AT FLOOR MILL, YAMLUR POST, YAMALUR, BENGALURU - 560 037.

¶13

Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

¶14

SMT.R.RADHA, W/O PRAKASH, AGED ABOUT 45 YEARS, R/AT NO.161, 7TH CROSS, 4TH MAIN, CHAMARAJPET, BENGALURU - 560 018.

¶15

…PETITIONERS

¶16

(BY SRI N KUMAR, ADVOCATE)

¶17

AND:

¶18

MUNIRAJU S/O V.RAMAIAH, AGED ABOUT 67 YEARS,

¶19

2 - NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶20

HEMALATHA,

¶21

W/O LATE R NAGARAJ, AGED ABOUT 59 YEARS, R/AT HOUSE NO.226, YAMALUR, BANGALORE SOUTH TALUK, BANGALORE DISTRICT.

¶22

NAIDU SREENIVASULU REDDY, S/O N RAMANA REDDY, AGED ABOUT 70 YEARS, R/AT LEBURU, NELLORE DISTRICT, ANDHRA PRADESH.

¶23

AUSTIN ROACH, S/O LATE P A ROACH, AGED ABOUT 63 YEARS, R/AT NO.5, DEFENCE COLONY, INDIRANAGAR 1ST MAIN, BANGALORE - 560 038. (PROPOSED DEFENDANT NO.1 IN LOWER COURT).

¶24

M/S PRESTIGE ESTATES, HAVING ITS REGISTERED OFFICE AT THE FALCON HOUSE, NO.1, MAIN GUARD CROSS ROAD, BANGALORE - 560 001. REPRESENTED BY ITS MANAGING DIRECT: IFRAN RAZAK (PROPOSED DEFENDANT NO.2 BEFORE LOWER COURT)

¶25

…RESPONDENTS

¶26

(BY SRI S. SHIVANANDA, ADVOCATE FOR R4; NOTICE TO RESPONDENT NOS.3 AND 5 ARE SERVED; VIDE ORDER DATED 19.04.2023, NOTICE TO R1 AND R2 ARE HELD SUFFICIENT)

¶27

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED

¶28

NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶29

¶30

ORDER DATED 4.1.2018 PASSED ON I.A.NO.3 UNDER ORDER 6 RULE 17 R/W SEC.151 OF CPC VIDE ANNX-A IN O.S.NO.1434/2013 PASSED BY THE XXX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE. AWARD THE COSTS OF THE PROCEEDINGS AND ETC.

¶31

IN WP NO. 10325/2019

¶32

BETWEEN:

¶33

SMT. KANTHAMMA, S/O MUNIANJANAPPA, AGED ABOUT 58 YEARS, R/AT NO.4, SRI MANJUNATHA NILAYA, 7TH CROSS, R R OIL MILL ROAD, SHAMANNA GARDEN, BANGALORE - 560 084.

¶34

SMT BHAGYALAKSHMI, W/O GOVINDARAJU, C/O JAYAMMA, AGED ABOUT 53 YEARS, R/AT FLOOR MILL, YAMLUR POST, YAMALUR, BENGALURU - 560 037.

¶35

SMT R RADHA, W/O PRAKASH, AGED ABOUT 45 YEARS, R/AT NO.161, 7^TH CROSS, 4TH MAIN, CHAMARAJPET, BENGALURU - 560 018.

¶36

...PETITIONERS

¶37

(BY SRI N. KUMAR, ADVOCATE)

¶38

AND:

¶39

MUNIRAJU, S/O V RAMAIAH, AGED ABOUT 67 YEARS,

¶40

4 - NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶41

HEMALATHA,

¶42

W/O LATE R NAGARAJ, AGED ABOUT 59 YEARS, R/AT HOUSE NO.226, YAMALUR, BANGALORE SOUTH TALUK, BANGALORE DISTRICT - 560 037.

¶43

NAIDU SREENIVASULU REDDY, S/O N RAMANA REDDY, AGED ABOUT 70 YEARS, R/AT LEBURU, NELLORE DISTRICT, ANDHRA PRADESH - 524 002.

¶44

AUSTIN ROACH, S/O LATE P A ROACH, AGED ABOUT 63 YEARS, R/AT NO.5, DEFENCE COLONY, INDIRANAGAR 1ST MAIN, BANGALORE - 560 038.

¶45

M/S PRESTIGE ESTATES, HAVING ITS REGISTERED OFFICE AT "THE FALCON HOUSE" NO.1, MAIN GUARD CROSS ROAD, BANGALORE - 560 001. REPRESENTED BY ITS MANAGING DIRECTOR IRFAN RAZAK. (PROPOSED DEFENDANT NO.2 BEFORE LOWER

¶46

COURT)

¶47

...RESPONDENTS

¶48

(BY SRI S. SHIVANANDA, ADVOCATE FOR R4;

¶49

NOTICE TO RESPONDENT NOS.3 AND 5 ARE SERVED;

¶50

VIDE ORDER DATED 19.04.2023, NOTICE TO RESPONDENT NOS.1 AND 2 ARE HELD SUFFICIENT.)

¶51

5 - NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶52

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 4.1.2018 PASSED ON I.A.NO.2 UNDER ORDER I RULE 10(2) R/W SEC. 151 OF CPC VIDE ANNX-A IN O.S.NO.1434/2013 PASSED BY THE XXX ADDL. CITY CIVIL SESSIONS JUDGE, BANGALORE. AWARD THE COSTS OF THE PROCEEDINGS AND ETC.

¶53

THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶54

CORAM: HON'BLE MR JUSTICE R. NATARAJ

¶55

ORAL ORDER

¶56

IN W.P NO.10329/2019

¶57

The plaintiffs in O.S No.1434/2013 on the file of XXX Addl. City Civil and Sessions Judge, Bangalore have filed this petition challenging an order dated 04.01.2018, by which an application filed by them under Order VI Rule 17 of Code Of Civil Procedure (for short 'CPC') was rejected.

¶58

(i) The suit in O.S No.1434/2013 was filed for partition and separate possession of the plaintiffs share in the suit schedule property. The defendants contested the suit and denied the entitlement of the plaintiffs for the reliefs. When the suit was set down for further chief examination of PW1, an application was filed by the plaintiffs under Order VI Rule 17 of CPC to include another property. The plaintiffs claimed that

¶59

6 - NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶60

they had no personal information about the properties held by the family and that after some effort, they could identify another property that was left out from the suit. Therefore, they sought the inclusion of the said property.

¶61

(ii) This application was contested by the proposed defendant, who had purchased the property that was sought to be included in the suit for partition. The proposed defendant inter alia contended that the plaintiffs did not mention in the application how the said property became the property of the joint family.

¶62

(iii) The Trial Court, in terms of an impugned order, rejected the application on the ground that the application was filed belatedly and that the same was sold by the members of the family in favour of the proposed defendant. It held that no revenue records were produced to show that the property left out belonged to the family. Therefore, it held that in the absence of any material particulars, the Court cannot come to a conclusion that the property sought to be included was necessary to be proceeded against. Being aggrieved by the said order, the plaintiffs are before this Court.

¶63

7 - NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶64

Learned counsel for the plaintiffs contended that in a suit for a partition, the plaintiffs are entitled to include all properties where the plaintiffs are entitled to a share, which could be done still a final decree is drawn. He contends that the suit was till at the stage of chief examination of PW1 and therefore, the Trial Court must have allowed the application, more particularly since the plaintiffs claimed that they were not aware of the particulars of the property owned by the family.

¶65

Per contra, learned counsel for the proposed defendant submitted that the plaintiffs have not disclosed any details, as to how the property came to be coffers of the joint family and therefore, the said property cannot be included in the suit.

¶66

The plaintiffs claimed that the property sought to be included also belonged to the joint family and they were entitled to include it and claim a share therein. As rightly contended by the learned counsel for the plaintiffs, such inclusion can be permitted till a final decree is drawn. However, it is for the plaintiffs to establish that the said property belongs to the joint family and that they are entitled

¶67

8 - NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶68

to a share therein. The Trial Court, must have allowed the plaintiffs to include the said property and place the burden to prove that the said property belonged to the joint family and that they were entitled to a share therein. Instead of proceeding with the case from this perspective, the Trial Court has predetermined the application by holding that the plaintiffs had not produced any document to show that the property was owned by the joint family. Under such circumstances, the impugned order passed by the Trial Court warrants interference.

¶69

Thus, the writ petition is allowed. The impugned order passed by the Trial Court is set aside. The application filed by the plaintiffs under Order VI Rule 17 of CPC is allowed. The plaintiffs are permitted to amend the suit and include the additional property.

¶70

It is open for the proposed defendant / defendants to file any additional written statement.

¶71

IN W.P No.10325/2019

¶72

The plaintiffs in O.S No.1434/2013 on the file of XXX Addl. City Civil and Sessions Judge, Bangalore have filed this

¶73

9 - NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶74

petition challenging an order dated 04.01.2018, by which an application filed by them to implead the purchasers of the property sought to be included by way of an application under Order I Rule 10(2) of Code Of Civil Procedure (for short 'CPC') was rejected.

¶75

A suit in O.S No.1434/2013 was filed for partition

¶76

and separate possession of the plaintiffs share in the suit schedule property. The suit was contested by the defendants.

¶77

When the suit was set down for further chief examination of PW1, an application filed by the plaintiffs to amend the plaint and introduce an additional property and also an application under Order I Rule 10(2) of CPC to implead the purchasers who had purchased the property sought to be included. The said application was contested by proposed defendant who claimed that the plaintiffs were not interested in the property sought to be included. They also contended that the plaintiffs did not produce any document to establish that the property belonged to the joint family. The Trial Court after considering the contentions urged in the application as well as objections, rejected the application filed to implead the

¶78

10 - NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶79

purchaser. Being aggrieved by the said order, the plaintiffs are before this Court.

¶80

Learned counsel for the plaintiffs contended that purchasers are proper and necessary parties and therefore, the Trial Court must have allowed the application. Per contra, learned counsel for the proposed defendant / respondent No.4 submits that the purchaser is not a proper and necessary party, as no burden is cast on him to prove any of the issues framed in the suit. He submits that rights of the purchaser would arise only in the final decree proceedings and certainly not in the suit, where the plaintiffs had to prove that the suit properties belonged to the joint family property and that plaintiffs are entitled to a share therein. Therefore he submits that the Trial Court is right in not allowing the application.

¶81

I have considered the submissions made by the

¶82

learned counsel for the plaintiffs and learned counsel for the defendants.

¶83

In a suit for partition, the obvious issues that arise for consideration are whether the plaintiff/s is / are members of a joint family and whether the suit properties belong to the

¶84

11 - NC: 2024:KHC:50351 WP No. 10329 of 2019 C/W WP No. 10325 of 2019

¶85

joint family and whether the plaintiffs are entitled to a share therein. Therefore, if a purchaser had purchased any property belonging to the joint family, from any person other than the plaintiff/s, then such purchaser can neither be a proper nor necessary party / ies as they cannot add any value in the process of determination of a suit. The remedy for or against a purchaser is only in final decree proceedings, where equity can be worked out so as to suitably accommodate the purchaser. Therefore, the Trial Court was right in holding that the purchasers are not necessary parties in the suit for partition and the remedy if any against the purchaser was to implead them in the final decree proceedings. Therefore there is no error committed by the Trial Court in rejecting the application filed by the plaintiffs under Order I Rule 10(2) of CPC, warranting interference in this writ petition .

¶86

Hence, this writ petition is dismissed, but subject

¶87

to the observations made above.

¶88

Sd/(R. NATARAJ) JUDGE

¶89

THM/List No.: 1 Sl No.: 52

Smt Kanthamma v. Muniraju

Case brief

What is this about?

What did the court decide?

Smt Kanthamma v. Muniraju

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

Coram

Case details

Similar cases

Sri. Ramegowda Vs Sri. Chikkathammaiah

Sri. T. Ramesh Vs Sri. B.L. Ravindra

Smt B M Sharadha Prakash Vs Smt G R Parvathamma

G Kunhiraman Vs Bodan Kajjodi

Sri. Muniyappa Since Dead by His Legal Representatives Smt. Rathnamma Vs Smt Ramakka Since Dead by Her Legal Representatives Smt. Gowramma

Sri Hanumantha Reddy Vs Smt Nagaveni