Karnataka High Court
H. S. Krishnaiah vs H.L. Somashekhar on 7 October, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
W.P. NO.8487 OF 2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF OCTOBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.8487 OF 2017 (GM-CPC)
BETWEEN:
H.S. KRISHNAIAH
S/O L.C. SHETTAIAH
AGED ABOUT 67 YEARS
RESIDING AT NO 19
12TH CROSS, CUBBONPET
BANGALORE - 560002
...PETITIONER
(BY SRI. G. KRISHNA MURTHY, ADVOCATE FOR
SMT. G.K. BHAVANA, ADVOCATE)
AND:
1. H.L. SOMASHEKHAR
S/O H.S. LAKSHMAIAH
AGED ABOUT 52 YEARS
RESIDING AT NO 16/106
10TH MAIN ROAD, 11TH B CROSS
MALLESHWARAM, BENGALURU
2. SRI. H.L. TUKARAM
S/O SRI.H.S. LAKSHMAIAH
AGED ABOUT 50 YEARS
RESIDING AT NO 1079
HIMAGIRI, CHIKKADEVARAYA ROAD
WEAVERS COLONY, PIPE LINE
SRINAGAR, BENGALURU - 560050
3. SRI. H.L. LAKSHMIKANTH
S/O SRI.H.S. LAKSHMAIAH
AGED ABOUT 50 YEARS
RESIDENT OF HALEPLAYA
TIPTUR - 572202
W.P. NO.8487 OF 2017
2
4. SRI. H.L. UMESH
S/O SRI.H.S. LAKSHMAIAH
AGED ABOUT 42 YEARS
RESIDENT OF HALEPLAYA
TIPTUR - 572202
5. SRI. H.S. LAKSHMAIAH
DEAD BY HIS LRS ARE RESPONDENTS
NO.1, 2, 3, 4 8 AND 9
ALREADY ON RECORD
6. SRI. H.S. LAKSHMINARAYNA
S/O L.C. SHETTAIAH
AGED ABOUT 61 YEARS
RESIDING AT ANNAPURNA
HALEPALYA POST
TIPTUR TALUK - 572202
7. SRI. H.S. RAMACHANDRA
S/O L.C. SHETTAIAH
AGED ABOUT 56 YEARS
RESIDENT OF HALEPALYA POST
TIPTUR TALUK - 572202
8. SRI. H.L. ASWATHNARAYANA
S/O SRI. H.S. LAKSHMAIAH
AGED ABOUT 54 YEARS
RESIDENT OF HALKURKE ROAD
ANNAPURNA HALEPALYA POST
TIPTUR - 572202
9. SRI. H.L. LOKESH
S/O H.S. LAKSHMAIAH
AGED ABOUT 46 YEARS
R/AT CHOWDESHWARIGUDI BEEDHI
HALEPALYA POST
TIPTUR - 572202
... RESPONDENTS
(BY SRI. SHANMUKHAPPA, ADVOCATE FOR R1, R2 & R4;
NOTICED SERVED TO R3, R6, R7, R8 AND R9;
R1 TO R4, R8 & R9 ARE TREATED AS LRS OF DECEASED R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 9.2.2017 PASSED BY THE VII ADDL. CITY CIVIL JUDGE,
W.P. NO.8487 OF 2017
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BANGALORE CITY IN O.S.NO.8358/2005 ALLOWING THE I.A.NO.5
FILED BY THE PLAINTIFF UNDER ORDER VI RULE 17 OF THE CIVIL
PROCEDURE CODE SEEKING FOR AMENDMENT OF PLAINT BY
ADDING CERTAIN PROPERTIES AS JOINT FAMILY PROPERTIES
ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP AND HAVING BEEN RESERVED FOR ORDERS
ON 15.09.2021, THIS DAY, THE COURT PRONOUNCE THE
FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs;
i. Set aside the order dated 9.2.2017 passed by the VII Addl. City Civil Judge, Bangalore City, in O.S.No.8358/2005 allowing the I.A.No.5 filed by the Plaintiff under Order VI rule 17 of the Civil Procedure Code seeking for amendment of Plaint by adding the certain properties as joint family properties Annexure 'A'.
ii. Pass such other and further orders as this Hon'ble Court deems fit in the circumstances, in the interest of justice.
2. The suit in O.S.No.8358/2005 was filed seeking for the following reliefs a. By DECREE declaring that the Plaintiffs 1 to 5 are entitled to partition and separate possession of their legitimate rights of 1/4th share in the Schedule Properties.
b. By Decree after holding that the Plaintiffs are entitled to 1/4th share together in the Schedule Properties put the Plaintiffs into the vacant possession of the Schedule Properties by metes and bounds.
W.P. NO.8487 OF 2017 4 c. By Decree for the manse profits after holding the enquiry under Order XX rule 12 of the Code of Civil Procedure.
d. For the cost and other relief or reliefs or order or orders as deem fit to grant in the circumstances of the case, in the interest of justice and equity.
3. I.A.No.5 under Order VI Rule 17 read with Section 151 of CPC for amendment of the Plaint was filed to include 13 properties in the plaint schedule. The said application came to be allowed by the trial Court vide its order dated 09.02.2017 which has been impugned in the present proceedings.
4. The trial Court while allowing the said application came to a conclusion that 4.1. The Court should be liberal in allowing the amendment to meet the ends of justice to decide the controversy in question and to avoid multiplicity of proceedings and driving the parties to the subsequent litigations. 4.2. Whether the properties are the joint family properties or not is a matter of evidence and W.P. NO.8487 OF 2017 5 as such, merits could not be decided at the time of considering and/or allowing the application for amendment since the Plaintiff has contended that the properties are the joint family properties, the same would have to be taken on face value, the suit being one for partition, all the joint family properties are required to be added to the Plaint since a suit for partial partition is not maintainable. 4.3. The amendment if allowed, no hardship or injury would be caused to the Defendants. The proposed amendment being only to include certain properties neither changes the cause of action nor does it alter the nature of the suit. If the properties are not included in the Plaint, another suit for partition can not be filed by the Plaintiffs.
4.4. The amendment being necessary for determining the real question in controversy W.P. NO.8487 OF 2017 6 between the parties, the application came to be allowed. The trial Court imposed a cost of Rs.3,000/- on the ground that the suit having been filed in the year 2005 and the application having been filed in the year 2010 was not prosecuted by the Plaintiffs until the year 2017. Therefore, there is a delay in prosecuting the matter.
5. It is aggrieved by the same that the petitioner, who is the 1st Defendant in the suit, is before this Court.
6. The parties are described by their rank before the trial Court.
7. Sri.G.Krishna Murthy, learned Senior Counsel appearing for the petitioner submitted that:
7.1. The Plaintiffs have filed O.S.No.8358/2005 seeking partition and separate possession of the alleged 1/4th share in the property.
W.P. NO.8487 OF 2017 7 7.2. It is the contention of the Plaintiffs themselves that Plaintiff No.5 and the Defendant Nos.1 to 3 are the brothers and are governed by the Hindu Mithakshara School of inheritance. 7.3. Plaintiff Nos.1 to 4 and Defendant Nos.4 and 5 are the sons of Plaintiff No.5. It is stated in the Plaint itself that Plaintiff No.5 separated from the joint family on 01.08.1965 by way of a registered partition deed. Even the other brothers of Plaintiff No.5 i.e., Defendants Nos.1 to 3 have also separated from the joint family by executing Release Deed dated 19.09.1973.
7.4. The Plaintiffs have themselves contended that the Defendant Nos.1 to 3 in collusion with their children and Defendant No.4 forcibly prevailed upon Plaintiff No.5 under a threat to their life to execute a registered Release Deed dated 14.06.2002 and on the very same day, W.P. NO.8487 OF 2017 8 a Partition Deed also came to be executed and signed by the Plaintiffs and registered before the jurisdictional Sub-Registrar. 7.5. The Plaintiffs have not challenged either the Release Deed or the Partition Deed dated 11.06.2002. In the absence of the said challenge to the Partition Deed, the question of the present suit being maintainable would not arise. In a non-maintainable suit, the question of filing an amendment application would also not arise.
7.6. The contention of the Plaintiffs is that though Plaintiff No.5 came out of the joint family, in view of the business relationship, they have continued with the joint family businesses treating the property as joint family property and therefore, now they have sought for partition. There are no pleadings made in the Plaint as regards reunion or otherwise. In the W.P. NO.8487 OF 2017 9 absence of such pleading of reunion, once there was a partition deed executed in the year 2002, the question of filing a partition suit in the year 2005 would not arise. 7.7. The Plaintiff No.5 having left the family in the year 1965 pursuant to a Partition Deed, Defendant Nos.1 to 3 having separated under a Release Deed dated 19.09.1973, the same having been confirmed by a Partition Deed in the year 2002, the question of introducing properties by way of an amendment which has been purchased by the Defendants subsequent to the aforesaid events would not arise.
7.8. Item No. 47 property sought to be introduced were purchased in the year 1989, item No.48 properties sought to be introduced was purchased in the year 1987, item No.49 properties sought to be introduced was W.P. NO.8487 OF 2017 10 purchased on 30.08.1985, item No.50 properties sought to be introduced was purchased on 27.06.1997, item No.51 properties sought to be introduced was purchased in the year 1980, item No.52 properties sought to be introduced was purchased in the year 1996, item No.53 properties sought to be introduced was purchased in the year 1996, item No.54 properties sought to be introduced was purchased in the year 1997, item No.55 properties sought to be introduced was purchased in the year 1973, item No.56 properties sought to be introduced was purchased in the year 1973, item No.57 properties sought to be introduced was purchased in the year 1965 and item Nos.58 and 59 as stated to be standing in the name of H.S.Lakshminarayan i.e., Defendant No.6 in the suit.
W.P. NO.8487 OF 2017 11 7.9. Learned senior counsel submits that these properties having been purchased subsequent to the aforesaid documents, they cannot be brought on record in the present suit since even as per the averment made by the Plaintiffs there being a separation, properties bought subsequent to the separation, cannot be made part of the suit schedule. 7.10. Submission is that once there is a partition, properties purchased subsequent to the partition, cannot be included in a Partition Suit filed subsequently. These facts would have to be looked into when this Court is considering an application under Order VI Rule 17 of CPC and if this Court were to come to a conclusion that the said amendment is not permissible or contrary to law, the amendment application is required to be rejected.
W.P. NO.8487 OF 2017 12 7.11. Instead of looking into all these aspects, the trial Court has allowed the said application. There is no application of mind on the part of the trial Court and as such, he submits that the impugned order is liable to be set aside and I.A.No.5 under Order VI Rule 17 of CPC is required to be dismissed.
8. Per contra, Sri.Shanmukhappa, learned counsel for respondent Nos.1, 2 and 4 would submit that:
8.1. there are disputes between the parties as regards whether there was a partition in the year 1965 or a Release Deed in the year 1973 and even the alleged Partition Deed of the year 2002. Therefore, when these documents are in dispute, it cannot be said that the properties brought by the Defendants are out of their own funds.
8.2. That there is a specific allegation and/or averment that the Plaintiffs and the W.P. NO.8487 OF 2017 13 Defendants continued to operate their business together and it is from and out of the income derived therefrom that the properties now sought to be incorporated and/or included in the plaint schedule were bought.
This is a matter which requires trial and merely on the contentions raised by the Defendants, the application could not be rejected.
8.3. The trial Court considering that the application and/or the amendment is required for the purpose of effectively deciding the real controversy between the parties has allowed the said application.
8.4. If at all the Defendants have any defence to the said documents and/or if the Defendants were able to prove that those properties had been purchased by the Defendants out of their W.P. NO.8487 OF 2017 14 own monies, then the same would be considered by the trial Court after the trial. 8.5. It is on the basis of the above, he submits that the order passed by the trial Court is proper and correct and does not require to be interfered with.
9. Heard Sri.G.Krishna Murthy, learned Senior counsel for the petitioner and Sri.Shanmukhappa, learned counsel for respondent Nos.1, 2 and 4 and perused the records.
10. The points that would arise for determinations by this Court are:
1. Whether once a Plaintiff were to contend that he has separated from the family, could properties bought subsequent to the said separation be included in the said Plaint for partition filed subsequently that too by way of an amendment?
2. Whether an amendment to include properties bought subsequent to the partition can be allowed without there being suitable averment made in the W.P. NO.8487 OF 2017 15 Plaint as regards reunion between the family members ?
3. Whether inclusion of certain properties in a plaint can be sought for without making specific averment and allegations that they are joint family properties acquired from and out of the joint family funds ?
4. Whether merely because Plaintiff contentions that the properties are joint family properties are they required to be included in the Plaint by way of an amendment?
5. What Order?
11. Answer to Point No.1: Whether once a Plaintiff were to contend that he has separated from the family, could properties bought subsequent to the said separation be included in the said Plaint for partition filed subsequently that too by way of an amendment?
11.1. This is a peculiar case in that Plaintiff filed a suit in O.S. No.8358/2005 seeking for partition and separate possession. In para 4 of the said Plaint it is stated as under :
"4. One Sri. L.C. Shettaiah was the father of fifth Plaintiff and the Defendants No.1 to 3. The Fifth Plaintiff was separated from the joint family set up on 1.8.1965 by registered partition deed registered as Document No.1510/65-66, Book No.I, Volume No.1082 at Pages 215 to 2016 registered in the office of the Sub-Regsitrar, W.P. NO.8487 OF 2017 16 Tiptur, leaving all immovable properties to the hands of father of the fifth Plaintiff herein that is L.C. Shettaiah, by taking only one property which was morefully described in the Schedule of the said Document. The said Document was registered in the style of single Partition Deed".
11.2. Paragraph 5 of the Plaint reads as under:
"5. Thereafter the other sons of L.C. Shettaiah, that is the Defendant Nos. 1 to 3 were also separated from the joint family set up, as such the second Defendant had released from the joint family set up on 19.9.1973 as per the registered release deed No.1217/73-74, Volume No.1316, Book No.1 at pages 180 181 registered in the office of the Sub-Registrar, Tiptur releasing entire properties in favour of L.C. Shettaiah. Likewise H.S. Krishnaiah the Defendant No.1 also released as per document No.1216/73-74, volume 1315 of Book No.1, at pages 240 to 241 registered in the office of the Sub-Registrar, Tiptur".
11.3. Thus, on a reading of Plaint, it is clear that Plaintiff No.5 is said to have separated from the joint family on 1.08.1965. It is also clear that Defendants No.1 to 3 also separated from the joint family by executing necessary release deed on 19.9.1973.
11.4. Plaintiff ceased to be a member of the joint family with effect from 1.8.1965 and the remaining joint family came to an end on W.P. NO.8487 OF 2017 17 19.9.1973 when Defendant nos. 1 to 3 separated from the property.
11.5. The allegation of the Plaintiff at para 8 is that the 5th Plaintiff after being released from the joint family had acquired several properties. At para 9 of the Plaint, it is stated that Defendants No.1 to 3 in active collusion with their respective children and in active collusion with Defendant No. 4 exercising undue influence had obtained certain signature on papers without allowing 5th Plaintiff to read and understand or making 5th Plaintiff to understand entire papers which were stated to be a release deed of the properties which were situated in Cubbonpet, Bangalore. 11.6. It is contended that the various anomalies in the execution of the said Document inasmuch as the documents are stated to be executed in Tiptur and presented for registration in W.P. NO.8487 OF 2017 18 Bangalore, the timeframe prescribed therein would not match the actual time frame to travel from Tiptur to Bangalore. It is therefore alleged that the said Document has been created by the Defendants and even otherwise same is not binding on the 5th Plaintiff for the reason that the Defendant and Plaintiffs did not constitute the joint family and they are separated by registered documents through their father wayback in the year 1965 and 1973. Thus the question of executing a partition deed in the year 2002 would not arise.
11.7. Paragraph 11 of the Plaint is reproduced here under for easy reference.
"11. Even otherwise it is not binding on the fifth Plaintiff or on the other Plaintiffs for the reason best known to the Defendant Nos.1 to 3 that the Defendants and the Plaintiffs was not constituted a joint family setup as they were separated by a registered documents through their father L.C. Settaiah in the way back 1965 and 1973. Thus the question f partition deed among the family does not arise".
W.P. NO.8487 OF 2017 19 11.8. At paragraph 12 it is contended that some of the properties subject matter of the partition deed dated 14.6.2002 had been acquired by the 5th Plaintiff subsequent to a separation from his father but however, none of the properties acquired by Defendant Nos.1 to 3 were included in the said partition deed. 11.9. It is categorically contended that the properties subject matter of the said partition deed are the self-acquired properties in the hands of the 5th Plaintiff, except the 5th Plaintiff even his sons were not entitled to partition and separate possession of the self acquired properties of the 5th Plaintiff and therefore it is opposed to the provisions of the Hindu Succession Act.
11.10. In paragraph 13, the grievance of the Plaintiffs is that if the Defendants No.1 to 3 W.P. NO.8487 OF 2017 20 were fair, they should have included property situated in Bangalore purchased by them. 11.11. On coming to know of the effect of the said Document, when fraud is perpetuated, the 5th Plaintiff approached Defendant Nos.1 to 3 to effect cancellation of the deed, which they refused to do so. Hence, Plaintiff had approached the trial Court, in the aforesaid suit seeking for partition of the properties by contenting that the 5th Plaintiff is continuing to be in joint possession with Defendant Nos.1 to 3 of the properties described in the suit schedule, the prayer sought for in the Plaint have been reproduced herein above. 11.12. Conspicuously, there is no challenge made to the partition deed of the year 2002 even though all the allegations in the Plaint are made in relation thereto. There is only a declaration sought for that the Plaintiffs 1 to 5 W.P. NO.8487 OF 2017 21 are entitled to 1/4th share in the scheduled properties and for separate possession thereof as also for enquire in main profits. 11.13. The reading of the entire Plaint would indicate that even according to the Plaintiffs, the 5th Plaintiff has separated himself from the joint family in the year 1965, thereafter he has acquired various properties which is claimed by the Plaintiffs to be the self acquired property of the 5th Plaintiff. There is a further allegation made that in the partition deed in the year 2002, the properties which were acquired by the Defendants No.1 to 3 subsequent to their separation had not been included, which establishes fraud on the part of Defendants No.1 to 3 since those properties also had to have been included in the partition deed, if Defendants No.1 to 3 were fair.
W.P. NO.8487 OF 2017 22 11.14. Therefore, the allegation and/or the grievance on the part of the Plaintiffs is that only the self-acquired properties of the 5th Plaintiff is made a part of the partition deed and not the self-acquired properties of Defendants Nos.1 to 3.
11.15. There is no dispute as regards the separation of the 5th Plaintiff from the family or the separation of Defendant Nos.1 to 3 from the family.
11.16. Admittedly, in the application which has been filed the properties which are now sought to be included are bought subsequent to the separation of the Plaintiff in the year 1965. If that be so, those properties cannot be said to be joint family properties and are apparently only now sought to be included in the Plaint because they were not included in the partition deed of the year 2002, which seems W.P. NO.8487 OF 2017 23 to be the grievance of the Plaintiffs as regards the partition deed.
11.17. In the affidavit filed in support of the amendment application, it is only stated that the Plaintiffs have not included all the joint family properties since they could not locate or trace to secure the documents pertaining to the same. Now that they have secured the same, the properties have to be included. Apart therefrom they are no other material averments made in the said affidavit. 11.18. Conspicuously, in the Plaint there were no averments made as regards a reunion of the family members. Be that as it may, even if it could be contended that by filing a partition suit there is a deemed averment made as regards reunion, the very allegation made by the Plaintiff is that the properties which had been bought by him are self acquired W.P. NO.8487 OF 2017 24 properties and that the properties bought by the Defendants 1 to 3 were not included in the partition deed of the year 2002 would indicate and establish that there is no reunion between the parties.
11.19. Thus there being no joint family in existence post 1965 and after 1973, any properties purchased by the other Defendants more so subsequent to 1965 since the 5th Plaintiff separated in the year 1965 cannot be said to be joint family properties and cannot be included in a suit for partition by way of an amendment.
11.20. Hence, I answer point No.1 by holding that once a Plaintiff were to contend that he has separated from the family, the properties bought subsequent to the said separation cannot be included in the said W.P. NO.8487 OF 2017 25 Plaint for partition filed subsequently that too by way of an amendment.
12. Answer to point No.2: Whether an amendment to include properties bought subsequent to the partition can be allowed without there being suitable averment made in the Plaint as regards reunion between the family members? 12.1. For a person to claim that the property is a joint family property there has to be specific averment made as to how the properties have been purchased, how the source of funds were procured and how the properties constitute joint family properties.
12.2. A mere perfunctory statement made would not qualify or classify a property to be a joint family property.
12.3. The Hon'ble Delhi High Court in the case of Surender Kumar vs. Dhani Ram reported in 227 (2016) DLT 217, more particularly, Paragraph 9 thereof has held as under:
W.P. NO.8487 OF 2017 26
9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details.
It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties 12.4. The Plaintiffs in the Plaint nor in the affidavit in support of the application under Order VI W.P. NO.8487 OF 2017 27 Rule 17 have made any averment to say as to how the properties are joint family properties except to state that the Plaintiff will in future prove that the property is joint family property.
12.5. It was required of Plaintiff to aver in sufficient detail as to how the properties which are now sought to be introduced by way of the amendment are joint family properties and fulfill the criteria laid down above. The same not having been done, it cannot be said that properties are joint family properties and on the basis of mere bland averment made by the Plaintiff, an application for amendment cannot be allowed on the sole ground that they can be determined after trial. There are various consequences to any property included in or made part of a suit, this Court as also the trial court would have to act W.P. NO.8487 OF 2017 28 judiciously and exercise discretion in a proper and required manner. An amendment which exfacie is contrary to the admissions made in the Plaint cannot be allowed. This Court cannot be a mute spectator to any abuse of the process of Court resorted to by any party to the litigation.
12.6. Hence, I answer point No.2 by holding that an amendment to include properties bought subsequent to the partition can not be allowed without there being a suitable averment made in the Plaint as regards reunion between the family members.
13. Answer to Point Nos.3 and 4:
Whether inclusion of certain properties in a plaint can be sought for without making specific averment and allegations that they are joint family properties acquired from and out of the joint family funds ?
And Whether merely because Plaintiff contentions that the properties are joint family properties W.P. NO.8487 OF 2017 29 are they required to be included in the Plaint by way of an amendment?
13.1. Point Nos.3 and 4 are connected to each other and hence, they are answered together.
13.2. In the amendment application, the Plaintiff has just stated that the property sought to be included by way of amendment are joint family property. Apart therefrom, the Plaintiff has not stated as to how the property became the joint family property, the mode of acquisition, the treatment of the property as joint family property etc. A bald contention that the property is a joint family property is not sufficient for considering the same as joint family property.
13.3. The person who alleges that the property is a joint family property has to clearly and categorically state as to how the property was acquired, who has been dealing with the property, who is in possession of the property W.P. NO.8487 OF 2017 30 and how the property has been in joint possession of all the joint family members. It is only after the initial burden is discharged, that the burden of proof shifts on the other person, to prove that it is not a joint family property in rebuttal. The initial burden of proof cannot be ignored. In the present application, there being no manner of stating as to how the property is joint family property or otherwise, the falls foul of the decision of the Delhi High Court in Surender Kumar's case, which would squarely apply to the present facts and circumstances of the case.
13.4. In view of the above, I answer Point Nos.3 and 4 by holding that no property can be included in a plaint by way of an amendment without specific averment and allegation being made, that it or they are joint family properties.
W.P. NO.8487 OF 2017 31
14. Answer to Point No.5: What Order?
14.1. In view of the finding above, the order passed by the trial Court dated 9.02.2017 in O.S.No.8358/2005 is set aside.
14.2. IA No.5 filed under Order VI Rule 17 is dismissed.
No order as to costs.
Sd/-
JUDGE SR/Prs*