Karnataka High Court
Sri Rocky Muthappa Rai vs Smt Anuradha Muthappa Rai on 25 July, 2024
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NC: 2024:KHC:29302
WP No. 15799 of 2024
C/W WP No. 16806 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO.15799 OF 2024 (GM-CPC)
C/W
WRIT PETITION NO.16806 OF 2024 (GM-CPC)
IN WP NO.15799 OF 2024:
BETWEEN:
1. SMT. ANURADHA MUTHAPPA RAI
W/O. LATE MUTHAPPA RAI N.
AGED ABOUT 50 YEARS,
PRESENTLY RESIDING AT NO.14, I CROSS,
SHANTHIVANA LAYOUT,
SAHAKARANAGAR POST,
BENGALURU-560 082.
...PETITIONER
(BY SRI VENKATESH S. ARABATTI, ADVOCATE
Digitally FOR SRI K.S. HARISH, ADVOCATE)
signed by V
MANJUSHA
BAI AND:
Location:
High Court of 1. SRI ROCKY MUTHAPPA RAI
Karnataka
S/O. LATE MUTHAPPA RAI N.
AGED ABOUT 43 YEARS,
PERMANENT RESIDENT OF 7E/26-27,
RAJMAHAL APARTMENT, 8TH CROSS,
9TH MAIN ROAD, RMV EXTENSION,
SADASHIVANAGAR,
BENGALURU-560 080.
2. SRI RICKY MUTHAPPA RAI
S/O. LATE MUTHAPPA RAI N.
AGED ABOUT 33 YEARS,
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
PRESENTLY RESIDING AT 7E/26-27
RAJMAHAL APARTMENT, 8TH CROSS,
9TH MAIN ROAD, RMV EXTENSION,
SADASHIVANAGAR,
BENGALURU-560 080.
3. M.R. STUD FARMS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANEIS ACT, 1956,
HAVING ITS REGISTERED OFFICE
AT NO.135/A, 9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080
REPRESENTED BY ITS PARTNER.
4. MRN DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080
REPRESENTED BY ITS PARTNERS.
5. UNNATHI GRANITES AND EXPORTS
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
6. MRS VENTURES
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.215, XANADU,
BIDADI HOBLI,
RAMANAGARA TALUK AND DISTRICT,
REPRESENTED BY ITS PARTNERS.
7. FOUR M PROPERTIES
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
8. ALPHA DEVANAHALLI PROPERTIES LLP
A LIMITED LIABILITY PARTNERSHIP
CREATED UNDER THE LLP ACT,
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
9. APLHA CONSOLIDATED PROJECTS (INDIA) LLP
A LIMITED LIABILITY PARTNERSHIP,
CREATED UNDER THE LLP ACT,
REGISTERED OFFIEC AT NO 135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
10. MR VENTURES
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.348, 12/2,
GROUND FLOOR, 4TH MAIN,
16TH CROSS, SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
11. BIDADI REALTY VENTURES
A PARTNESHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE - 560 080.
REPRESENTED BY ITS PARTNERS.
12. 4 R BUILDERS AND DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.210/2, II FLOOR,
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
ABOVE RENAULT SHOWROOM,
SADASHIVANAGAR,
BANGALORE-560 080
REPRESENTED BY ITS PARTNERS.
13. CANARA EDUCATION SOCIETY
TRUST REGISTERED UNDER THE TRUST ACT,
NO.10/1, GROUND FLOOR,
LAKSHMINARAYANA COMPLEX,
PALACE ROAD, BANGALORE - 560 052.
REPRESENTED BY ITS TRUSTEE
P ASHWIN PAI.
14. SMT. A PUSHPAJA SHETTY
AGED 68 YEARS,
W/O. JAGANNATHA SHETTY,
DOOR NO.603, SLR MANSION,
I BLOCK, BASAVESHWARA NAGAR,
BANGALORE-560 079.
15. SRI SANJAY C D
MAJOR,
S/O. C H DEVRAJ,
NO.4, BENSON ROAD,
BENSON TOWN, BANGALORE-560 046.
16. NARAYANSWAMY G
AGED ABOUT 38 YEARS,
NO.26/1, 1ST FLOOR,
OPPOSITE TO METRO PILLAR 94-95,
KANAKAPURA ROAD, YELECHENHALLI,
BENGALURU - 560 078.
17. ASHWIN RAI
AGED ABOUT 33 YEARS,
SAJA HOUSE, BULERIKATTE POST,
PUTTUR TALUK, DAKSHINA KANNADA.
18. M/S VISHISTA LEISURES LLP
A REGISTERED LIMITED LIABILITY,
PARTNERSHIP FIRM HAVING OFFICE AT
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
NO.21, FLAT NO.106,
SILVER OAKS, VITTAL MALLYA,
MAHATMA GANDHI ROAD,
BANGALORE-560 001.
REPRESENTED BY ITS DESIGNATED PARTNERS,
MR. H S HARIPRASAD @ HARANAHALLI,
SHIVALINGAIAH HARIPRASAD.
...RESPONDENTS
(BY SRI A. RAVISHANKAR, ADVOCATE FOR R.1;
SRI V. KRISHNA MURTHY, ADVOCATE FOR R.18;
NOTICE TO R.3 TO R.17 IS DISPENSED WITH VIDE
COURT ORDER DATED 19.06.2024.)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH BY WRIT
OR CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR
ORDER DIRECTION IN THE NATURE OF WRIT, THE ORDER
DATED 04.06.2024 PASSED BY THE VII ADDITIONAL CITY
CIVIL JUDGE AND SESSIONS JUDGE, BANGALORE (CCH-19)
ON IA NO.30 IN OS NO.3046/2020 IN SO FOR AS IT REJECTS
THE PRAYER OF THE PLAINTIFF FOR INSERTION OF
AMENDMENTS RELATING TO SCHEDULE 'AE' PER ANNEXURE-A
AND CONSEQUENTLY ALLOW THE APPLICATION AS PRAYED,
ETC.
IN WP NO.16806 OF 2024:
BETWEEN:
1. SRI ROCKY MUTHAPPA RAI
AGED ABOUT 41 YEARS,
S/O. LATE MUTHAPPA RAI N.
PERMANENT RESIDENT OF 7E/26-27,
RAJMAHAL APARTMENT, 8TH CROSS,
9TH MAIN ROAD, RMV EXTENSION,
SADASHIVANAGAR,
BENGALURU-560 080.
2. SRI RICKY MUTHAPPA RAI
AGED ABOUT 31 YEARS,
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NC: 2024:KHC:29302
WP No. 15799 of 2024
C/W WP No. 16806 of 2024
S/O. LATE MUTHAPPA RAI N.
PERMANENT RESIDENT OF 7E/26-27,
RAJMAHAL APARTMENT, 8TH CROSS,
9TH MAIN ROAD, RMV EXTENSION,
SADASHIVANAGAR,
BENGALURU-560 080.
...PETITIONERS
(BY SRI RAVISHANKAR A., ADVOCATE)
AND:
1. SMT. ANURADHA MUTHAPPA RAI
AGED ABOUT 48 YEARS,
W/O. LATE MUTHAPPA RAI N.
PRESENTLY RESIDING AT NO.14, I CROSS,
SHANTHIVAN LAYOUT,
SAHAKARANAGAR POST,
BENGALURU-560 082.
2. M.R. STUD FARMS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANEIS ACT, 1956,
HAVING ITS REGISTERED OFFICE
AT NO.135/A, 9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080
3. MRN DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080
REPRESENTED BY ITS PARTNERS.
4. UNNATHI GRANITES AND EXPORTS
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
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NC: 2024:KHC:29302
WP No. 15799 of 2024
C/W WP No. 16806 of 2024
BANGALORE 560 080.
REPRESENTED BY ITS PARTNERS.
5. MRS VENTURES
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.215, XANADU,
BIDADI HOBLI,
RAMANAGARA TALUK AND DISTRICT,
REPRESENTED BY ITS PARTNERS.
6. FOUR M PROPERTIES
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
7. ALPHA DEVANAHALLI PROPERTIES LLP
A LIMITED LIABILITY PARTNERSHIP
CREATED UNDER THE LLP ACT,
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
8. APLHA CONSOLIDATED PROJECTS (INDIA) LLP
A LIMITED LIABILITY PARTNERSHIP,
CREATED UNDER THE LLP ACT,
REGISTERED OFFIEC AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
9. MR VENTURES
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.348, 12/2,
GROUND FLOOR, 4TH MAIN,
16TH CROSS, SADASHIVANAGAR,
BANGALORE-560 080.
-8-
NC: 2024:KHC:29302
WP No. 15799 of 2024
C/W WP No. 16806 of 2024
REPRESENTED BY ITS PARTNERS.
10. BIDADI REALTY VENTURES
A PARTNESHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
11. 4 R BUILDERS AND DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.210/2, II FLOOR,
ABOVE RENAULT SHOWROOM,
SADASHIVANAGAR,
BANGALORE-560 080
REPRESENTED BY ITS PARTNERS.
12. CANARA EDUCATION SOCIETY
NO.10/1, GROUND FLOOR,
LAKSHMINARAYANA COMPLEX,
PALACE ROAD, BANGALORE-560 052
REPRESENTED BY ITS TRUSTEE
P ASHWIN PAI.
13. SMT. A PUSHPAJA SHETTY
AGED 66 YEARS,
W/O. JAGANNATHA SHETTY,
DOOR NO.603, SLR MANSION,
I BLOCK, BASAVESHWARA NAGAR,
BANGALORE-560 079.
14. SRI SANJAY C D
MAJOR,
S/O. C H DEVRAJ,
NO.4, BENSON ROAD,
BANGALORE-560 046.
15. NARAYANSWAMY G
AGED ABOUT 36 YEARS,
NO.26/1, 1ST FLOOR,
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NC: 2024:KHC:29302
WP No. 15799 of 2024
C/W WP No. 16806 of 2024
OPPOSITE TO METRO PILLAR 94-95,
KANAKAPURA ROAD, YELECHENHALLI,
BENGALURU - 560 078.
16. ASHWIN RAI
AGED ABOUT 31 YEARS,
SAJA HOUSE, BULERIKATTE POST,
PUTTUR TALUK, DAKSHINA KANNADA.
...RESPONDENTS
(BY SRI VENKATESH S. ARABATTI, ADVOCATE FOR
SRI K.S. HARISH, ADVOCATE FOR R.1;
NOTICE TO R.2 TO R.16 ARE DISPENSED WITH
VIDE COURT ORDER DATED 09.07.2024)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
PASSED BY THE VII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, (CCH-19), BENGALURU, DATED 04.06.2024 PASSED
ON I.A.NO.30 FILED UNDER ORDER VI RULE 17 OF CPC., IN
O.S.NO.3046/2020, SO FAR RELATING TO INCLUSION OF
ITEMS NO.9 TO 12 PROPERTIES IN SUIT SCHEDULE 'S'
HEREWITH PRODUCED AS ANNEXURE-A, ETC.
THESE PETITIONS ARE COMING ON FOR FURTHER
HEARING, THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE M.I.ARUN
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
ORAL ORDER
(PER: HON'BLE MR JUSTICE M.I.ARUN)
1. Aggrieved by the order dated 04.06.2024 passed by VII Additional City Civil and Sessions Judge, Bengaluru on I.A.No.30 in O.S.No.3046/2020 insofar as it relates to rejecting the prayer of the plaintiff in insertion of amendments relating to Schedule 'AE' property in the said application, the plaintiff therein has preferred Writ Petition No.15799/2024 and aggrieved by allowing the amendment to insert item nos.9 to 12 in Schedule 'S' properties to the plaint, defendant nos.1 and 2 therein have preferred Writ Petition No.16806/2024.
2. The parties are referred to as per their status in W.P.No.15799/2024.
3. Plaintiff/petitioner is the step mother of defendant nos.1 and 2. The late husband of the petitioner, who is also the father of respondent nos.1 and 2, held shares in respondent nos.3 to 13 entities.
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4. Respondent no.18 purchased the Schedule 'AE' property from respondent nos.1 and 2.
5. The petitioner herein filed O.S.No.3046/2020 against respondent nos.1 and 2 herein and few other persons for a relief of partition and separate possession to an extent of 1/3rd share in all the properties described in the Schedule to the plaint.
6. During the course of the proceedings, petitioner herein filed I.A.No.9 in the original suit and sought for amending the plaint wherein, apart from other things, she sought to amend Schedule 'C' property and also include properties at items 1 to 19 in the said application as part of Schedule 'D' property to the plaint. Item nos.1 to 18 of Schedule 'D' as mentioned in the said application pertain to lands situated in Navilahalli village, K.Hoskote Hobli, Alur Taluk, Hassan District. Item No.19, however, pertain to Daithapura village and is described as hereinbelow:
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 "ITEM NO.19 All that piece and parcel of coffee plantation lands at Daithapura Village, K.Hoskote Hobli, Alur Taluk, Hassan District in the following Survey Nos' Survey No. Extent 1/4 0 Acres 14 Guntas 36/2 51 Acres 15 Guntas The said item no.19 is the subject matter of the writ petition.
7. Before orders could be passed by the trial court on I.A.No.9 filed by the petitioner herein, defendant nos.20 and 21 in the original suit purchased item nos.1 to 18 in the proposed Schedule 'D' property from defendant nos.1 to 3. It is submitted that they also purchased proposed Schedule 'C' property. Subsequently, the said purchasers paid certain amounts to the petitioner herein and the petitioner executed confirmation deed in respect of proposed Schedule 'C' and items 1 to 18 of Schedule 'D' properties. Thereafter, a compromise petition was filed to that effect and a prayer was made to the trial court to pass a decree regarding relinquishment of rights of the
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 parties concerned in Schedule 'C' properties and Schedule 'D' properties as it was mentioned in the original plaint.
8. The trial court passed a judgment and decree in respect of Schedule 'C' and 'D' properties as in the original plaint wherein it recognised that the suit properties have been sold in favour of defendant nos.20 and 21. It is submitted by the petitioner that by virtue of I.A.No.9, the petitioner intended to describe the immovable property, which was part of Navilahalli Plantation LLP, which was originally mentioned in Schedule 'D' to the plaint.
9. Thereafter, on 06.03.2023, as petitioner had entered into a compromise with defendant nos.20 and 21, a memo was filed by the petitioner which stated that the petitioner would not press the amendment sought in respect of entire Schedule 'C' and 'D' properties as mentioned in I.A.No.9. The said memo was allowed by the trial court by an order dated 16.03.2023 and on the very same day, I.A.No.9 was also allowed wherein the amendment sought for by the petitioner/plaintiff has been allowed excluding
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 Schedule 'C' and 'D' properties to the said IA and the petitioner also carried out necessary amendments to the original suit excluding Schedule 'C' and 'D' properties to the original suit.
10. Then, on 13.02.2024, on the strength of deletion of Schedule 'D' property, which included item no.19 in Schedule 'D' property, from the proceedings before the trial court, defendant nos.1 and 2/respondent nos.1 and 2 herein executed sale deed in favour of respondent no.18 herein in respect of the property concerned. Immediately thereafter, the petitioner herein filed I.A.No.28 to further amend the plaint pleadings by including the original proposed item no.19 to Schedule 'D' as Schedule 'AE' in the plaint and also filed IA No.29 to implead respondent no.18 herein as defendant no.22 in the original suit. However, as petitioner had again committed mistakes in the manner in which I.A.No.28 was drafted, she sought the permission of the Court to withdraw the said I.A. as not pressed with liberty to file a fresh I.A. and the same
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 was granted to her by the trial court. Thereafter, the petitioner filed I.A.No.30 wherein she sought to include item No.19 in Schedule 'D' property as stated in I.A.No.9 as Schedule 'AE' and also some other properties as Schedule 'S' to the plaint and sought permission of the Court to amend the pleadings.
11. The said IA came to be allowed in part wherein the prayer of the petitioner to include item nos.9 to 12 to Schedule 'S' in the plaint has been allowed but whereas the amendment sought to include Schedule 'AE' to the plaint has been rejected. Aggrieved by the order of the trial court wherein the prayer of the petitioner to include Schedule 'AE' to the plaint has been rejected, the plaintiff therein has preferred W.P.No.15799/2024 and aggrieved by the order of the trial court allowing the amendment of the plaint to include item nos.9 to 12 to Schedule 'S', defendant nos.1 and 2 in the original suit have preferred W.P.No.16806/2024.
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12. The case of the petitioner is that the trial court erred in not allowing the amendment as sought for to include Schedule 'AE' property in the plaint. She justifies the order insofar as it relates to include item nos.9 to 12 to Schedule 'S' properties in the plaint.
13. Per contra, respondent nos.1 and 2 justify the order passed in respect of Schedule 'AE' and challenge the order passed in respect of Schedule 'S' properties by the trial court in the order on the amendment application.
14. The trial court has dismissed the proposed amendment regarding Schedule 'AE' property on the ground that the petitioner by way of I.A.No.9 sought for insertion of Schedule 'AE' property as item no.19 in Schedule 'D' and thereafter filed a memo to reject the proposed amendment, which has been accepted by the trial court and filing of a fresh application to again make similar amendment is hit by Order II Rule 2 of CPC.
15. With regard to allowing the amendment in respect of Schedule 'S' properties, the trial court has reasoned that
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 the petitioner has sought for partition of the properties purchased out of the funds of her late husband and Schedule 'S' properties are also said to have been bought in the name of respondent nos.1 and 2 by their late father and that the petitioner has sought to include the same immediately after coming to know about the said properties immediately.
16. The question that arises for consideration is whether the trial court erred in its decision or not?
17. With regard to Schedule 'S' properties:
(a) Admittedly, Schedule 'S' properties were purchased in the name of respondent nos.1 and 2 in the year 2012.
Their father who was also husband of the petitioner is said to have died in the year 2020. Even presuming that the said properties were purchased out of the funds of the deceased husband of the petitioner, the provisions of the Benami Transactions (Prohibition) Act, 1988, as it stood then prohibited the husband of the petitioner making any
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 claim on the said properties when he was alive. Section 2(a) of the Act reads as under:
"2(a) benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person;"
Section 3(1) and (2) as it stood then, read as under:
"3. Prohibition of benami transactions- (1) No person shall enter into any benami transaction.
(2) Nothing in sub-section(1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife of the unmarried daughter."
Section 4(1) and (2) as it stood then, read as under:
"4. Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property."
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 Thus, as per the aforementioned provisions, a father who purchased the properties in the name of his major son, was prohibited from making a claim as to the ownership of the property on the ground that the same was purchased out of his funds. In the instant case, the petitioner is trying to claim a right on the Schedule 'S' properties through the right of her deceased husband, which is impermissible.
(b) For the aforementioned reasons, in my opinion, the trial court erred in allowing I.A.No.30 insofar as it relates to insertion of item nos.9 to 12 to Schedule 'S' properties in the plaint.
18. With regard to Schedule 'AE' property:
(a) Admittedly, petitioner is the second wife of her late husband, married after the demise of the first wife.
Respondent nos.1 and 2 are born to the first wife. Schedule 'AE' property was purchased in the name of the first wife. The case of the petitioner is that the properties concerned were also purchased out of the funds of her late
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 husband and that she has a right over the same. It is also argued that even otherwise, if it is presumed that the first wife had the sources to purchase the said properties, she died intestate and that her late husband has a right over a portion of the property and she inherits that right. Per contra, respondent nos.1 and 2 submit that the property belonged exclusively to their late mother and they have inherited the same by way of a will executed by her in their favour.
(b) The aforementioned contentions can be decided only after a full fledged trial before the trial court. However, the question that needs to be decided in the instant writ petitions is whether the petitioner satisfies the requirements under Order VI Rule 17 of CPC, for the trial court to permit her to amend the plaint.
(c) Order VI Rule 17 of CPC reads as under:
"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
(d) The suit is for partition and separate possession of the suit schedule properties. The same is instituted in the year 2020. I.A.No.9 for including item no.19 in Schedule 'D' was filed on 02.08.2021. This was before commencement of the trial and the petitioner has pleaded that she was not aware of the existence of the property and immediately after coming to know of the same, she has filed the amendment application. On 27.08.2021, the petitioner has made a representation to the Sub-Registrar, Alur Taluk, not to register any sale deed regarding the property concerned. On 06.03.2023, during the pendency of I.A.No.9, the petitioner filed a memo to delete Schedule 'C' and 'D' properties from the proposed amendment and it included Schedule 'AE' property (item no.19 of
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 Schedule 'D'). On 16.03.2023, the trial court passed an order on the memo, wherein the same was accepted. On the same day, an order was passed on I.A.No.9, wherein amendment to the plaint was allowed after deleting the proposed Schedule 'C' and 'D' properties, which included the present Schedule 'AE' property. On 28.03.2023, the petitioner has carried out the amendment to the plaint as per the orders of the trial court. Thereafter, the case has been posted for evidence of the plaintiff and by 05.02.2024, all the witnesses on the side of the petitioner have been examined. On 11.03.2024, affidavit evidence of DW.1 has been filed. In the meanwhile, by way of a sale deed dated 13.02.2024 registered on 17.03.2024, Schedule 'AE' property has been sold by respondent nos.1 and 2 in favour of respondent no.18. On 27.03.2024, petitioner filed I.A.No.28 to amend the plaint and to insert Schedule 'AE' property. On 19.04.2024, the plaintiff has filed a memo before the trial court seeking dismissal of I.A.No.28 with liberty to file a fresh application on the ground that there was certain errors in the said
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 application. On 25.04.2024, I.A.No.30 is filed to insert Schedule 'AE' property in the plaint by way of amendment.
(e) As per Order VI Rule 17 of CPC, an application for amendment to a plaint, after the trial has commenced, cannot be allowed by the trial court unless it comes to the conclusion that in spite of due diligence, the plaintiff could not have raised the matter before the commencement of the trial.
(f) The case of the petitioner is that at the first instance, she never intended to delete Schedule 'AE' property which was part of item no.19 of Schedule 'D' to I.A.No.9. By a mistake committed while filing the memo to delete Schedule 'C' and 'D' properties to I.A.No.9, the present Schedule 'AE' property came to be included in the memo and an order to that effect was passed by the trial court. However, the compromise was with regard to properties excluding Schedule 'AE', which is a matter of record. That the interest of justice will suffer if she is not permitted to insert the same now.
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024
(g) Per contra, it is the case of respondent nos.1, 2 and 18 that the same was deliberately deleted by the petitioner. It is submitted that as defendant nos.20 and 21 purchased Schedule 'C' and 'D' properties (except item no.19 to Schedule D) to I.A.No.9, the petitioner though having no rights over the same, threatened to engage them in the litigation and to buy peace, they paid certain amounts and the said properties were deleted. It is submitted that with regard to Schedule 'AE' property also, she did the same thing with respondent no.18 and her representation to the Sub-Registrar, with a request not to register the sale deed is a testimony of it. It is also submitted during arguments that amounts have been paid to her by third persons on behalf of respondent no.18 and as she was not satisfied by the same, has filed I.A.No.30 to include the properties again.
(h) Whether petitioner has received any money as alleged or not cannot be decided in these proceedings. What needs to be considered is that I.A.No.30 is filed after
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 commencement of the trial and whether the petitioner satisfies that in spite of due diligence she could not have raised the matter before commencement of the trial.
(i) Perusal of the affidavit filed in the trial court by the petitioner along with the amendment application (I.A.No.30), shows that the petitioner has not made an averment to the effect that in spite of due diligence, she could not have sought the said amendment. The only contention taken by the petitioner is that, she sought the amendment to include the property by way of I.A.No.9 which was filed before commencement of trial, but by mistake got the same deleted by filing a memo and the same was never intended and that it happened by mistake and I.A.No.30 is filed to rectify the same and interest of justice requires allowing the same.
(j) However, the contention of the petitioner cannot be accepted if one were to analyse the sequence of events as detailed in paragraph 18(d) supra. The petitioner is a well educated lady, conscious of her rights. She wants a share
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024 in the properties purchased in the name of her step children and their late mother, much before she having married her late husband. After passing of the order on the memo filed by her, deleting Schedule 'AE' property, she has carried out the amendment to the plaint, adduced evidence and has been cross examined and has waited till sale deed is executed in favour of respondent no.18, after giving a representation to the Sub-Registrar not to register the property and thereafter has filed the present application for amendment. The said action, even if it is presumed is not deliberate, has to be considered as negligent. It cannot be considered as the petitioner having exercised due diligence as contemplated in Order VI Rule 17 of CPC. Hence, in my opinion, without going into, whether the trial court erred in concluding that Order II Rule 2 of CPC comes in the way of the application, the same has to be dismissed on the ground that the requirements of proviso to Order VI Rule 17 of CPC is not satisfied by the petitioner herein.
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NC: 2024:KHC:29302 WP No. 15799 of 2024 C/W WP No. 16806 of 2024
19. Hence, the following:
ORDER
(i) W.P.No.15799/2024 is hereby dismissed;
(ii) W.P.No.16806/2024 is hereby allowed;
(iii) The impugned order dated 04.06.2024passed by VII Additional City Civil and Sessions Judge, Bengaluru on I.A.No.30 in O.S.No.3046/2020 insofar as it relates to allowing insertion of item nos.9 to 12 to the plaint 'S' Schedule and to insert pleadings in that regard are hereby set aside;
(iv) I.A.No.30 filed by the petitioner herein in O.S.No.3046/2020 pending on the file of VII Additional City Civil and Sessions Judge, Bengaluru, is hereby dismissed.
Sd/-
(M.I.ARUN) JUDGE hkh.