Karnataka High Court
Smt Vijayakumari vs Smt Gangamma on 22 November, 2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF NOVEMBER, 2013
:BEFORE:
THE HON'BLE MR.JUSTICE B.V.PINTO
WRIT PETITION NO.48418/2013 (GM-CPC)
BETWEEN:
SMT. VIJAYAKUMARI,
W/O.SRI H.M.YOGESH,
AGED ABOUT 40 YEARS,
R/AT NO.102E,
VASANTHAPURA VILLAGE,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 061. ... PETITIONER
(BY SRI LEELADHAR.H.P. ADV.)
AND:
1. SMT GANGAMMA,
W/O. LATE GOVINDAPPA,
D/O, MUNIMARAPPA,
AGED ABOUT 75 YEARS,
R/AT VASANTHAPURA VILLAGE,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 061.
2. SRI MUNIYAPPA,
S/O. MUNIMARAPPA,
AGED ABOUT 70 YEARS,
R/AT VASANTHAPURA VILLAGE,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 061.
2
3. SMT BYRAMMA,
W/O. LATE MUNISWAMAPPA,
AGED ABOUT 60 YEARS,
4. SRI SURENDRA,
S/O LATE MUNISWAMAPPA,
AGED ABOUT 42 YEARS,
5. SRI HARISH,
S/O LATE MUNISWAMAPPA,
AGED ABOUT 38 YEARS,
RESPONDENT NOs.3 TO 5
ARE RESIDING AT
NO.102, VASANTHAPURA VILLAGE,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 061.
6. SMT. PUTTAMMA,
D/O MUNIMARAPPA,
W/O HANUMAIAH,
AGED ABOUT 65 YEARS,
R/AT DODDABELE VILLAGE,
THYAMAGONDALA POST,
DODDABALLAPURA TALUK-561 203.
7. SMT. MUNILAKSHMAMMA,
D/O. MUNIMARAPPA,
W/O. CHINNAIAH,
AGED ABOUT 62 YEARS,
R/AT HEMMIGEPURA VILLAGE,
KENGERI HOBLI,
BANGALORE SOUTH TALUK
BANGALORE- 560 060.
8. SMT. SHESHAMMA.
D/O.MUNIMARAPPA,
W/O MUDDAPPA,
AGED ABOUT 59 YEARS,
R/AT NYANAPPANAHALLI VILLAGE,
BEGUR POST,
3
BANGALORE SOUTH TALUK
BANGALORE-560 068. ... RESPONDENTS
(BY SRI ANANTHA NARAYANA.B.N, ADV. FOR C/R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO CALL FOR ENTIRE RECORDS IN OS
NO.7776/2008 PENDING ON THE FILE OF THE 38TH
ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE
CITY AT BANGALORE AND TO QUASH THE ORDER
PASSED BY THE 38TH ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY AT BANGALORE IN OS
NO.7776/2008 ON DTD.23.8.2013 ON IA NO.2 UNDER
ORDER 6 RULE 17 R/W SEC.151 OF CPC AND ALLOW
THE SAID APPLICATION VIDE ANNEX-A.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This writ petition is filed seeking to set aside the order dated 23.08.2013 passed on IA No.2 in OS No.7776/2008 pending on the file of 38th Additional City Civil and Sessions Judge, Bangalore City.
2. The petitioner is the plaintiff in the said suit. The petitioner has filed the suit for partition of the suit schedule properties which are five items of the landed properties situated in Uttarahalli Hobli, Vasanthapura Village, Bangalore South Taluk. The suit is of the year 4 2008. The petitioner filed an application under Order 6 Rule 17 r/w Section 151 of Civil Procedure Code on 13.03.2013 seeking to amend the plaint and requested the Court to add para 4(a) to the plaint and also add item No.6 to the suit schedule properties which is the land bearing Survey No.35/1, measuring 1 acres and 34 guntas situated in Vasanthapur Village, Uttarahalli Hobli, Bangalore South Taluk.
3. The said application was resisted by the defendants before the trial Court on the ground that the said land had come to the ownership and possession of defendant No.2 by virtue of release deed dated 21.01.1987. Thereafter the 2nd defendant had got the land converted for non agricultural use and thereafter a portion of the said land has been alienated in favour of one N.Balakrishna Naidu S/o.Rama Naidu by registered General Power of Attorney dated 30.07.1996 authorising him to sell the said land. Thereafter the said GPA holder has converted the said property into sites and sold the sites to other persons by way of registered sale deeds. The remaining land is in possession of 2nd defendant 5 and he has obtained the Corporation Khata to the said land. Hence, it is his submission that the said property has ceased to be the Hindu Undivided Family property and does not come within the purview of the partition in the suit. It is also further contended by respondent/defendant No.2 that, the plaintiff/petitioner gets right by virtue of amendment to Hindu Succession Act with effect from 20.12.2004, the day on which the amendment came into operation, whereas the alienation has taken place even prior to the said date. Hence, he submits that the application for amendment has been rightly dismissed by the trial Court and hence the writ petition may be dismissed.
4. Heard both sides.
5. The fact that the property belongs to the family of the plaintiff and the defendants is not in dispute. It is the case of the defendants that the property was originally belonging to the family, but however, by virtue of the release deed dated 21.01.1987, defendant No.2 has come into possession of the said 6 property. Thereafter, he has sold the property. However, even according to the defendants the fact remains that originally the property belongs to the family. The amendment sought for is only for the partition and inclusion of the said property in the family property and that the trial is yet to begin.
6. Under the circumstances and in view of the rulings of the Supreme Court reported in 2007(1) KCCR 346 (State Bank of Hyderabad v. Town Municipal Council) and (2004) 6 Supreme Court Cases 415 (Pankaja and another v. Yellappa (Dead) by LRs and others), I am of the opinion that the inclusion of the aforesaid property would minimize the multiplicity of the suit between the parties and would ultimately enure to the benefit of the parties. The order refusing amendment is against settled principles of law.
8. Accordingly, the writ petition is allowed. The application filed by the petitioner/plaintiff under Order 6 Rule 17 r/w Section 151 of Civil Procedure Code is allowed. The trial Court shall permit the plaintiff to 7 amend the plaint as prayed for. The observations made in this order shall not effect the merits of the case. Since the suit is of the year 2008 and defendant No.2 is aged about 75 years, the trial Court is directed to expedite the trial and dispose of the suit as early as possible.
Sd/-
JUDGE KSR