Smt. Saraswathamma Vs Smt. Rathnamma

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Reserved on : 13.08.2025 Pronounced on : 07.11.2025

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07^TH DAY OF NOVEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.3153 OF 2024 (GM - CPC)

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BETWEEN:

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SMT. SARASWATHAMMA @ SMT. K.R.SARASWATHAMMA W/O LATE K.V.GOPAL AGED ABOUT 62 YEARS R/AT K.T.V.BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036.

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... PETITIONER

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(BY SRI JAYAKUMAR S.PATIL, SENIOR ADVOCATE A/W., SRI M.S.VARADARAJAN, ADVOCATE)

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AND:

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1 . SMT. RATHNAMMA W/O LATE K.V.THIMMAPPA AGED ABOUT 63 YEARS R/AT K.T.V.BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036.

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2 . K.T.RAJKUMAR S/O LATE K.V.THIMMAPPA AGED ABOUT 42 YEARS R/AT K.T.V.BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036.

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3 . SMT. ANUSUYA T., D/O SMT. RATHNAMMA LATE K.V.THIMMAPPA W/O NAVEEN CHANDRASHEKAR AGED ABOUT 37 YEARS PERMANENT ADDRESS K.T.V.BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036

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PRESENTLY R/AT MARITAL HOME 104, GOLF VIEW APARTMENTS CRESCENT ROAD, BENGALURU - 560 001.

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4 . SMT. T.GEETHA LAKSHMI D/O LATE K.V.THIMMAPPA AGED ABOUT 45 YEARS PERMANENT ADDRESS K.T.V.BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036

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PRESENTLY R/AT MARITAL HOME NO.1900, SOUTH END ‘C’ CROSS 9^TH BLOCK, JAYANAGAR BENGALURU - 560 069.

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5 . SMT. A.SHANTHI

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D/O LATE LAKSHMINASAMMA LATE K.V.ASWATHAIAH AGED ABOUT 51 YEARS R/AT K.T.V.BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036.

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6 . A.SRINIVAS S/O LATE LAKSHMINARASAMMA LATE K.V.ASWATHAIAH AGED ABOUT 49 YEARS R/AT K.T.V.BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036.

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7 . SMT A.GEETHA D/O LATE LAKSMINARASAMMA AND LATE K.V.ASWATHAIAH AGED ABOUT 46 YEARS R/AT K.T.V.BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036.

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K.A.KODANDARAMA @ K.A.KODANDARAMAIAH S/O LATE SMT.GOWRAMMA AND LATE SRI B.ADIMURTHY SINCE DEAD REPRESENTED BY HIS LR

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8. K.HEMANTH

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S/O LATE VANAJAKSHI AND K.A.KODANDARAMA AGED ABOUT 26 YEARS R/AT K.T.V.BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION

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OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036.

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9 . SMT. NANJAMMA W/O LATE K.V.RAJAPPA AGED ABOUT 62 YEARS PERMANENT ADDRESS R/AT K.T.V.BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036

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ALSO AT

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NO.1 LAKSHMI VENKATESHWARA NILAYA KTV LAYOUT, K.R.PURAM BENGALURU – 560 036.

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10 . SMT. R.MANJULA DEVI D/O LATE K.V.RAJAPPA AND NANJAMMA AGED ABOUT 44 YEARS PERMANENT ADDRESS R/AT K.T.V BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036

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ALSO AT NO.1, LAKSHMI VENAKTESHWARA NILAYA KTV LAYOUT, K.R.PURAM BENGALURU – 560 036.

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11 . SMT. R.HEMAVATHI D/O LATE K.V.RAJAPPA AND SMT. NANJAMMA AGED ABOUT 42 YEARS PERMANENT ADDRESS R/AT K.T.V.BUILDING

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NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036

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ALSO AT NO.1, LAKSHMI VENKATESHWARA NILAYA KTV LAYOUT, K.R.PURAM BENGALURU – 560 036.

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12 . SMT. R.LAKSHMIDEVI D/O LATE K.V.RAJAPPA AND SMT. NANJAMMA AGED ABOUT 39 YEARS PERMANENT ADDRESS R/AT K.T.V BUILDING NEXT TO K.R.PURAM TRAFFIC POLICE STATION, OLD MADRAS ROAD K.R.PURAM, BENGALURU – 560 036

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PERSETNLY R/AT MARITAL HOME NO.123/6, CHIRANJEEVI NILAYA 3^RD CROSS, MUNIYAPPA GARDEN LAYOUT NEW POLICE STATION ROAD K.R.PURAM, BENGALURU – 560 036.

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... RESPONDENTS

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(BY SRI T.SESHAGIRI RAO, ADVOCATE FOR R1 AND R2; SMT. DEVI SOWMYA L., ADVOCATE FOR R3; SRI SHAMANTH NAIK, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE IMPUGNED ORDER DATED 15/12/2023 PASSED ON IA NO. 7 IN OS NO. 5501/2021 ON THE FILE OF THE XIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH-18) (ANNEXURE-A).

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 13.08.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CAV ORDER

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Petitioner-defendant No.13 is at the doors of this Court

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calling in question order dated 15-12-2023, by which the concerned Court allows application in I.A.No.7 filed under Order VI Rule 17 of the CPC seeking amendment of the plaint.

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Facts in brief, germane, are as follows:

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2.1. Brief facts that led the parties to the suit are

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necessary to be noticed. One Kodigehalli Thimmappa had 3 children namely K.T.Venkatappa, K.T.Narayanappa and Chennamma. K.T.Narayanappa had instituted a suit for partition in O.S.No.1309 of 1980 in respect of the property belonging to Kodigehalli Thimmappa. The suit was decreed by awarding half share to K.T.Venkatappa’s branch and half share

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to K.T.Narayappa’s branch. Final Decree Proceedings (‘FDP’ for short) were instituted in respect of the preliminary decree so drawn in FDP No.97 of 2002. Against the order passed in FDP, the parties therein approach this Court in RFA No.1489 of 2016. The said RFA is pending consideration at the hands of this Court.

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2.2. When things stood thus, the 3^rd respondent/plaintiff

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institutes a suit for partition and separate possession in O.S.5501 of 2021. Written statement is filed by the defendants therein. On 22-07-2022 the 4^th

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respondent/defendant No.2 files her written statement and registers a counter claim in O.S.No.5501 of 2021. The counter claim is said to have included the properties belonging to the branch to the Chennamma i.e., the properties belonging to H.Narayanappa and K.N.Ramaiah which were allegedly purchased by K.T.Venkatappa in their name. On 09-12-2022, defendants 1 and 3 files I.A.No.7 to amend the written

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statement to include additional properties to their counter claim. The petitioner/defendant No.13 files her objections to the said application seeking amendment on certain grounds. The said application comes to be allowed by the concerned Court in terms of the order dated 15-12-2023. The allowing of the application is what has driven the petitioner to this Court in the subject petition.

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Heard Sri Jayakumar S Patil, learned senior counsel appearing for petitioner, Sri T Seshagiri Rao, learned counsel appearing for respondents 1 and 2, Smt Devi Sowmya L, learned counsel appearing for respondent No.3 and Sri Shamanth Naik, learned counsel appearing for respondent No.4.

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Learned senior counsel appearing for the petitioner Sri Jayakumar S. Patil taking this Court through the documents appended to the petition would seek to

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demonstrate that the properties sought to be included by defendant No.1 and 3 do not belong to K.T.Venkatappa. Since the subject matter of the partition suit is with regard to the properties belonging to the branch of K.T.Venkatappa, other properties that do not belong to him cannot be included in the suit. The amendment cannot be allowed on the ground that the same properties have already been included by the 2^nd defendant, since every amendment has to be considered individually on its own merits. The plea of the respondents that the properties belong to K.T.Venkatappa, but purchased in the name of H.Narayapppa and K.N.Ramaiah is in violation of the provisions of the Prohibition of Benami Property Transactions Act, 1988.

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Per-contra, learned counsel Sri T Seshagiri Rao, representing the respondents 1 and 2/defendants 1 and 3 would submit that the proposed amendment does not introduce a new case or change the nature of the suit, since

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the same properties have already been included by defendant No.2 in her written statement and the counter claim. Petitioner/defendant No.13 had also filed an application seeking amendment of written statement in I.A.No.8 contending that the properties of K.N.Ramiah cannot be included pursuant to the defendant No.2 filing her written statement and the counter claim. The trial Court allows application I.A.No.8. The amendment sought by defendants 1 and 3 in I.A.No.7 is complementary to I.A.No.8 and if I.A.No.8 is allowed, I.A.No.7 is also required to be allowed.

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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The petitioner is defendant No.13. The history to the proceedings dates back to a suit instituted seeking partition and separate possession between 3 children of one Kodigehalli Thimmappa. The suit in O.S.1309 of 1980 is decreed and the

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FDP proceedings are concluded in the said suit in FDP No. 97 of 2002. All these are pending at large before this Court in RFA No.1489 of 2016. It is not in dispute that the suit in O.S.No.1309 of 1980 is decreed by awarding half share to K.T.Venkatappa’s branch their legal heirs and half share to K.T.Narayanappa’s share and their legal heirs. The petitioner/defendant No.13 is the daughter of one K.N.Ramaiah who is said to be the purchaser of the properties from the hands of H.Narayanappa. The plaintiff/3^rd respondent institutes a fresh suit in O.S.5501 of 2021 seeking relief of partition and separate possession. The issue in the lis is not with regard to the merit of the matter. In the said suit several applications are filed by the parties. Those are said to be allowed.

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Defendants 1 and 3/ respondents 1 and 2 herein files an application under Order VI Rule 17 of the CPC seeking amendment of the written statement and to include additional

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properties to their counter claim. The amendment so sought runs into 8 pages. The proposed amendment is as follows:

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“PROPOSED AMENDMENT

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Add Paras 6(a), 6(b), 6(c), 6(d) and 6(e) after Para 6

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Para 6(a): It is submitted that K.A.Kodandarama, the 7^th Defendant has unequivocally stated that he does not belong to the Hindu Undivided Family of K.T.Venkatappa and thereby was not a necessary party in O.S.No.1309/1980 (O.S.No.38/1976). The same is also applicable in respect of the 8^th Defendant who is only entitled to the share derivable under his demised mother: Vanajakshi in the branch of K.V.Aswathaiah in the capacity of Smt. Vanajakshi being the daughter of K.V. Aswathaiah.

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Para 6(b): It is stated that properties annexed in the schedule hereinunder which presently stands in the name of K.R. Saraswathamma the 13^th Defendant are derivable from her father K.N.Ramaiah and her paternal grand-father H. Narayanappa. H. Narayanappa was married to Chennamma the only sister of K.T.Venkatappa and post the marriage, K.T. Venkatappa looked after the economic welfare of his sister and her husband H. Narayanappa. That many avocations and was a very successful businessman. It is submitted that K.T. Venkatappa ran certain businesses such being tobacco and cloth business in the name of his brother-in-law: H. Narayanappa, K.T.Venkatappa purchased certain Written Statement Schedule Properties in the name of H. Narayanappa.

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Para 6(c): It is stated that K.T.Venkatappa was instrumental in the economic upliftment of H.Narayanappa and having regard to familial ties and trust, K.T.Venkatappa purchased Written Statement Schedule Properties in the name of H.Narayanарра.

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Para 6(d): It is submitted in light of such strong familial bondage, the only child H.Narayanappa and Channamma being K.N.Ramaiah was married to Yellamma, who was the daughter of K.T.Venkatappa. Further also k.T.Venkatappa contributed to the economic progress of his son-in-law: K.N.Ramaiah,

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K.T.Venkatappa purchased certain Written Statement Schedule Properties in the name of K.N.Ramaiah. Further the familial bond was taken further in the form of marriage between K.R.Saraswathamma, the 13^th Defendant who is the daughter of K.N.Ramaiah with that of K.V.Gopal, who was the son of K.T.Venkatappa.

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Para 6(e): Whereby the Written Statement Schedule Properties are necessary and proper estate addition for the determination of the present suit for partition in respect of the estate of K.T. Venkatappa as amongst his legal heirs.

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Add Para 7(a) after Para 7:

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Para 7(a): Wherefore the written Statement Schedule Properties may also partitioned amongst the parties to the suit who are the legal heirs of K.T.Venkatappa as per applicable law.

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Add at the very end:

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WRITTEN STATEMENT SCHEDULE PROPERTIES

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ITEM NO.1:

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All that is piece and parcel of property bearing House list No.141, assessed at Rs.38-40, situated at Krishnarajapuram, Bengaluru East Taluk, Bengaluru and bounded on the:

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East by : K.T.Venkatappa's site with foundation West by : The land belonging to late Muddamma North by : Land belonged to late KempaLakkanna South by : The property belonging to K.N. Ramaiah

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ITEM NO.2

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All that is piece and parcel of property bearing House list No. 2/1 assessed at Rs.96/- situated at Krishnarajapuram, Bengaluru East Taluk, Bengaluru and bounded on the:

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East by : The sites belonging to K. T. Venkatappa with foundation West by : The property belonging to K.N.Ramaiah North by : House bearing H.L. No.141

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South by : Road

ITEM NO.3:

All that is piece and parcel of property bearing House list No.142/2 assessed at Rs.57-60/- situated at Krishnarajapuram, Bengaluru South Taluk, Bengaluru and bounded on the:

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East by : The property belonging to K.N.Ramaiah West by : The House belonging to Gangappa and vacant site North by : The property belonging to K.N. Ramaiah South by : Road

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ITEM No.4:

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All that is piece and parcel of property bearing House list No.305, consisting of eight buildings thereon and vacant land measuring 90 feet East to West and 186 feet North to South, situated at Krishnarajapuram, Bengaluru South Taluk Bengaluru and bounded on the:

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East by : Property formerly belonged to Gubbi Hanumanthappa and Balappa and H.L.No. 240. West by : I.T.I.Road and compound. North by : Portion of the same number sold to third parties by Late. K.N. Ramaiah and site formerly belonged to Sajjappa South by : Site belonging to Venkateshiah and Narayana Setty

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ITEM NO.5

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All that is piece and parcel of property bearing House list No.204, situated at Krishnarajapuram, Bengaluru South Taluk, Bengaluru and bounded on the:

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East by : The property belonging to Mastan West by : Property belonging to K.N. Ramaiah North by : Land formerly belonged to Balappa South by : The House belonging to Narayana Setty

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ITΕΜ ΝΟ.6

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All that is piece and parcel of immovable property being agricultural land bearing Sy No 4, measuring to an extent of 25 Guntas and assessed at 0-95 paise, situated at Krishnarajapura Village, Krishnarajapura Hobli, Bengaluru South Taluk and bounded on the:

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East by : The land of Puttarangamma West by : The land of Medahalli Venkatasamappa North by : Tank bed of Yengiahnakere South by : Shanbhogilnamthi land

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ITEM NO.7:

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All that is piece and parcel of immovable property being agricultural land bearing Sy No.5/1, measuring to an extent of 25 Guntas and assessed at 1-25 situated at Krihnarajapura Village, Krishnarajapura Hobli, Bengaluru South Taluk and bounded on the:

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East by : The land of Puttarangamma West by : The land of Medahalli Venkatasamappa North by : Tank bed of Yengiahnakere South by : Shanbhogilnamthi land

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ITEM NO.8

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All that is piece and parcel of immovable property being agricultural land bearing 5/2, measuring to an extent of 1 Acre 04 Guntas and assessed at 2-20. Situated at Krishnarajapura Village, Krishnarajapura Hobli, Bengaluru South Taluk and bounded on the:

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East by : The land of Puttarangamma West by : The land of Medahalli Venkatasamappa North by : Tank bed of Yengiahnakere South by : Shanbhogilnamthi land

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ITEM NO.9

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All that is piece and parcel of immovable property being agricultural land bearing No.117 measuring to an extent of 32

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Guntas and assessed at 1-55 situated at Krishnarajapura Village, Krishnarajapura Hobli, Bengaluru South Taluk and bounded on the:

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East by : Thotilnamthi lands West by : Thotilnamthe lands North by : The lands belonging to VenkataramanaSetty South by : Temple Inam lands

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ITEM NO.10

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All that is piece and parcel of immovable property being agricultural land bearing Sy No.19/1, measuring to an extent of 1 Acre 06 Guntus (including 02 Guntas of (kharab) and assessed at 1-85, situated at Krishnarajapura Village, Krishnarajapura Hobli, Bengaluru South Taluk and bounded on the:

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East by : Sannathammanahalli Boundary West by : The lands of Parvathamma and others North by : The lands belonging to Narayana Reddy South by : Channel and land bearing Sy No 32

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ITEM NO.11:

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All that is piece and parcel of immovable property being agricultural land bearing Sy. No.2/2, measuring to an extent of 3 Acres 14 Guntas and assessed at 4-59, situated at Krishnarajapura Village, Krishnarajapura Hobli, Bengaluru South Taluk and bounded on the:

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East by : The lands belonging to K.T. Venkatappa, Late IBrahim Saheb and A.K. Colony West by : The lands belonging to late Kempa Lakkanna And K.T.Venkatappa North by : The land belonging to Phakeer Venkataramanappa and others South by : Muslim Burial ground

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ITEM NO.12

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All that is piece and parcel of immovable property being agricultural land bearing Sy. No 32, measuring to an extent of

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22 Guntas (including 06 Guntas of Kharab) and assessed at 0-76, situated at Sannathammanahalli Village, Krishnarajapura Hobli Bengaluru South Taluk and bounded on the:

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East by : The land belonging to Soorappa West by : The boundary of Krishnarajapuram North by : The land belonging to SubbarayaSetty South by : Channel

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ITEM NO.13:

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All that is piece and parcel of immovable property being agricultural land bearing Sy.No.35/2, measuring to an extent of 1 Acre 23 Guntas and assessed at 2-89, situated at Sannathammanahalli Village, Krishnarajapura Hobli, Bengaluru South Taluk and bounded on the:

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East by : The Mariappa's land West by : The land of Dasaratha Setty North by : The land of Soorapa South by : Channel

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ITEM NO.14:

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All that is piece and parcel of immovable property being agricultural Land bearing S No.41/1, measuring to an extent of 2 Acres 10 Guntas, assessed at 3-58, situated at Bhatharahalli Village, Bidarahalli Hobli. Hosakote Taluk, Bangalore District and bounded on the:

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East by : Mysore Metal Industries Factory and lands belonging to Gurappa and Pillappa West by : Land bearing Sy. No.44 North by : Old Madras Road South by : Land of Ramachandrappa

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ITEM NO.15:

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All that is piece and parcel of immovable property being converted land bearing Sy No.41/2, measuring to an extent of 5 Acres, situated at Bhattarahalli Village. Bidarahalli Hobli, Hosakote Taluk, Bangalore District and bounded on the:

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East by : Mysore Metal Industries Factory and lands belonging to Gurappa and Pillappa West by : Land bearing Sy No. 44 North by : Old Madras Road South by : Land of Ramachandrappa

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ITEM NO.16:

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All that is piece and parcel of immovable property being agricultural land bearing Sy No. 44, measuring to an extent of 4 Acres 35 Guntas, assessed at 7-96, situated at Bhattarahalli Village, Bidarahalli Hobli, Hosakote Taluk, Bangalore District and bounded on the:

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East by : Item No.1 referred to above and the land of Pillappa West by : Hard Alloy Factory and the land bearing Sy. No.45 North by : The land of Ramachandrappa South by : Land of Ramachandrappa

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ITΕM ΝΟ 17:

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All that is piece and parcel of immovable property being agricultural land bearing Sy.No.45, measuring to an extent of 3 Acres 14 Guntas, assessed at 6-07, situated at Bhattarahalli Village, Bidarahalli Hobli, Hosakote Taluk, Bangalore District and bounded on the:

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East by : Land bearing Sy No.44 West by : Channel North by : Hard Alloy Factory and the lands belonging to Munivenkatappa and Sy. No.47 South by : The land belonging to Gopalappa.”

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About 16 items are sought to be added to the written statement, as the schedule properties, apart from what is now

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registered as schedule properties. The concerned Court allows the application by the following order:

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“…. …. ….

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REASONS

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POINT NO-1:: As can be seen from the proposed amendment narrated by the defendant No.3 that he wants to add 17 more properties for seeking partition in the same. It is the contention that the said properties are joint family properties. So, in the said properties partition is to be effected. It is specifically stated by him that the defendant No.2 has included certain properties standing in the name of K.N.Ramaiah. As the said properties were purchased by K.T.Venkatappa in the name of K.N.Ramaiah. After having scrutinized the papers, it has come to his knowledge and astonished that his grandfather K.T.Venkatappa had also purchased the properties in the name of H. Narayanappa, who is none other than the husband of Channamma. The said K.T.Venkatappa had vast business and out of the said business he had invested into the properties purchased in the name of H.Narayanappa. So, for effective and equitable distribution, the proposed properties are required to be added in the written statement.

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On the contrary, the defendant No.13 strongly objected for the said application denying the contentions taken by the defendant No.3 in the affidavit. It is contended that as there are no details like date of sale deed and whose name the said sale deed stands. Therefore, the application is not maintainable. The said defendant No.13 on the other grounds sought for dismissal of application.

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As could be seen from the records, the suit is filed for partition and separate possession wherein, the plaintiff included the 69 immovable properties in the suit alleging that the said properties are joint family properties. The defendant No.1 & 3 filed counter claim and now they want to add 17 properties claiming that in which they are entitled for partition. It is further seen from the records that the defendant No.13 totally denied

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the case of plaintiff. However, upon going through the records it is opined that the said defendant No.1 & 3 are intending to add some more facts along with the existing facts to seek partition in all the properties. It is significant to note that the properties, which the defendant No.1 & 3 want to add with their defence are the properties, which are already included in the Counter Claim of the defendant No.2. Therefore, the amendment which the defendant No.1 & 3 intend to make is not any new facts to the case.

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As I pointed out supra, the said defendant No.1 & 3 also seeking partition by way of counter claim and under such circumstances, if the amendment is allowed, no prejudice will be caused to either of the parties. Admittedly, the trial has not yet begun and merely because, if the defendant No.1 & 3 are allowed to amend the written statement it does not mean that their entire plea deserve to be accepted. It is the settled principles of law reported in AIR 2019 Supreme Court 1186 in the case of Varun Pahwa Vs. Mrs. Renu Chaudhary wherein, the Hon'ble Supreme Court held that the Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and it is not governed by any such narrow or technical limitations.

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In the case of Salem Advocate Bar Vs. Union of India and others reported in (2005) 6 SCC 344 wherein, the Hon'ble Supreme Court has held that the object of adding the proviso is to prevent the frivolous application, which are filed to delay the trial. In the case of Vidyabai and others Vs. Padmalatha and another reported in AIR 2009 SC 1433 the Hon'ble Supreme Court of India has held that the court jurisdiction to allow an application under Order VI Rule 17 of CPC is taken away unless the condition precedent there for or satisfied i.e., the court must come to a conclusion that in respect of due diligence the parties could not have raised the matter before the commencement of trial. Thus, the proviso indicates that once the trial commenced, no amendment should be allowed except where it is found necessary on account of the subsequent events like change in law subsequent to framing of issues or on account of any fact comes to the knowledge of the applicant after framing of the issues, which he could not have discovered with diligence when the issues were framed.

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The object of rule 17 is to minimize the litigation, minimize the delay and to avoid multiplicity of suits. Therefore it has been included to do justice and not to shut out justice merely on technicality of pleadings. Rule 17 was considered by Hon'ble Supreme Court in P.H. Patil Vs. K.S. Patil reported in AIR 1957 SC 363 wherein, it is held that " Courts should by the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to other side. In the instant case, trial is not started and merely because, the amendment if allowed, it does not take away the case of the defendant No.13. Therefore, I am of the opinion that no hardship would be caused if the amendment is allowed. As such, in view of my above reasons, I am inclined to answer Point No.1 in the affirmative.

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POINT NO.2 :: In view of my answer to Point No.1. I proceed to pass the following:

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ORDER

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I.A.No.7 dated 09-12-2022 filed by the defendants No.1 & 3 under Order VI Rule 17 R/w. Sec. 151 of CPC is allowed.

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No order as to costs.”

¶162

The concerned Court, on the score that the object of the litigation is to minimize delay and to avoid multiplicity and to do complete justice, allows the application on the score that those properties already forms the subject matter of the counter claim filed by other defendants.

¶163

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¶164

The issue is, whether allowing of the application is tenable in law or otherwise. In the normal circumstance, the application so filed seeking amendment under Order VI Rule 17 of the CPC must be allowed or a liberal approach should be adopted, but the nature of amendment that is quoted hereinabove would undoubtedly enlarge the issue in the suit and change the nature of the rights of the properties itself.

¶165

If the contention of the learned counsel for the respondents 1 and 2 is that I.A.No.8 includes the very same properties which forms the schedule in the written statement or the counter claim filed by defendant No.2/respondent No.4, the present application which brings in 16 items of properties need not be permitted to be brought on record. If the defendants 1 and 3 wanted to include these properties, they ought to have done so at the time of registration of the counter claim itself. Now, by bringing in an amendment to the written statement, allegedly including the properties that do

¶166

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¶167

not belong to their branch would cause serious prejudice to the case of the other parties to the partition.

¶168

It becomes the necessary to notice the affidavit in support of the application filed by defendant No.3. It reads as follows:

¶169

I, K.T. Rajkumar, S/o. Late K.V. Thimmappa, aged about 41 years, residing at KTV Building, Next to K.R. Puram Traffic Police Station, Old Madras Road. K.R. Puram, Bengaluru 560 036, do hereby solemnly affirm and state as follows:-

¶170

I state that I am the Defendant No. 3 in the above matter and aware of the facts and circumstances of the case. Hence, I depose to the matters pertaining thereto. I state that, the Defendant No. 1 is my mother and she has authorised me to swear to this affidavit on her behalf also.

¶171

I state that the Plaintiff has filed the present suit for the relief of partition and separate possession in respect of suit properties. The plaintiff is my younger sister and youngest of the grandchildren of K.T. Venkatappa.

¶172

I state that Defendant No.2 is my elder sister and she is the eldest in the branch of K.V.Thimmappa's children. The 2^nd Defendant being the eldest of the siblings does know certain aspects which the younger siblings would not be in the knowhow and out of the said knowledge, Defendant No.2 has included certain properties standing in the name of K.N. Ramaiah in the Written Statement Schedule Properties in the present suit for partition stating that the same were purchased by K.T. Venkatappa in the name of K.N. Ramaiah, who was none other than his son-in-law.

¶173

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¶174

I state that after the filing of Written Statement by Defendant No.2, I started to further minutely peruse and gothrough the papers in respect of my paternal grand-father: K.T.Venkatappa's estate and the judicial proceedings pertaining to his estate.

¶175

I state that in the course of such perusal and scrutiny of papers pertaining to the estate of K.T.Venkatappa, it has come to my knowledge and astonishment that my grandfather: K.T. Venkatappa had also purchased properties in the name of H.Narayanappa. The said H.Narayanappa is none other than the husband of Channamma, who happens to be the only sister of K.T.Venkatappa and further K.N. Ramaiah happens to be his only legal heir.

¶176

I state that perusal of the records of the judicial proceedings clearly demonstrate that my paternal grandfather: K.T.Venkatappa had vast business interests, some of which he ran in the name of his brother-in-law: H. Narayanappa and the profits out of the said business had been invested in the properties purchased in the name of H. Narayanappa.

¶177

I state that it has further come to my knowledge that out of the said proximity, H.Narayanappa's son K.N.Ramaiah was married to Yellamma, the daughter of K.T.Venkatappa and further K.T.Venkatappa and further K.T.Venkatappa also contributed to the economic progression of K.N.Ramaiah, his son-in-law.

¶178

I state that the pleading pertaining to the addition of the estate purchased by H.Narayanappa and K.N.Ramaiah is necessary for effective and equitable distribution of the partible estate of K.T. Venkatappa amongst his legal heirs.

¶179

I further state that it has come to my knowledge that the deceased – 7^th Defendant has admitted that he had no share in the estate of K.T.Venkatappa and pleadings in this regard are necessary for effective adjudication of the present suit for partition.

¶180

I state that, if the accompanying application is allowed as prayed for then no injustice or hardship would be caused to the case of the contesting side on the contrary, if the

¶181

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¶182

accompanying application is not allowed as prayed for, then we would be put to irreparable hardship and injustice which cannot be compensated in any manner…”

¶183

Defendant No.3 files the affidavit in support of defendant No.1 as well. There is no reason as to why these properties are to be included in the written statement schedule properties. The reason why they were not included while filing the written statement is not indicated. The concerned Court has grossly erred in allowing the application as a matter of course in the aforesaid order.

¶184

In the light of the aforesaid reasons, the order of the concerned Court warrants appropriate interference. Hence, the following:

¶185

ORDER

¶186

(i) Writ Petition is allowed .

¶187

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¶188

(ii) Impugned order dated 15-12-2023 passed by the concerned Court on I.A.No.7 filed under Order VI Rule 17 of the CPC stands quashed.

¶189

(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of the petitioner/ defendant No.13 qua the application I.A.No.7 filed by defendants 1 and 3/respondents 1 and 2 herein and the same will not become binding or can be taken advantage of, in the pending proceedings in O.S.No.5501 of 2021. Ordered accordingly.

¶190

Pending application if any also stands disposed.

¶191

Sd/(M.NAGAPRASANNA) JUDGE

¶192

bkp CT:SS

Smt. Saraswathamma v. Smt. Rathnamma

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Smt. Saraswathamma v. Smt. Rathnamma

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