Karnataka High Court
Smt. Saraswathamma vs Smt. Rathnamma on 7 November, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 13.08.2025
Pronounced on : 07.11.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.3153 OF 2024 (GM - CPC)
BETWEEN:
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.
... PETITIONER
(BY SRI JAYAKUMAR S.PATIL, SENIOR ADVOCATE A/W.,
SRI M.S.VARADARAJAN, ADVOCATE)
AND:
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.
2
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.
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
PRESENTLY R/AT MARITAL HOME
104, GOLF VIEW APARTMENTS
CRESCENT ROAD, BENGALURU - 560 001.
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
PRESENTLY R/AT MARITAL HOME
NO.1900, SOUTH END 'C' CROSS
9TH BLOCK, JAYANAGAR
BENGALURU - 560 069.
5. SMT. A.SHANTHI
3
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.
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.
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.
K.A.KODANDARAMA @ K.A.KODANDARAMAIAH
S/O LATE SMT.GOWRAMMA AND
LATE SRI B.ADIMURTHY
SINCE DEAD REPRESENTED BY HIS LR
8. K.HEMANTH
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
4
OLD MADRAS ROAD
K.R.PURAM, BENGALURU - 560 036.
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
ALSO AT
NO.1 LAKSHMI VENKATESHWARA NILAYA
KTV LAYOUT, K.R.PURAM
BENGALURU - 560 036.
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
ALSO AT
NO.1, LAKSHMI VENAKTESHWARA NILAYA
KTV LAYOUT, K.R.PURAM
BENGALURU - 560 036.
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
5
NEXT TO K.R.PURAM TRAFFIC
POLICE STATION, OLD MADRAS ROAD
K.R.PURAM, BENGALURU - 560 036
ALSO AT
NO.1, LAKSHMI VENKATESHWARA NILAYA
KTV LAYOUT, K.R.PURAM
BENGALURU - 560 036.
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
PERSETNLY R/AT MARITAL HOME
NO.123/6, CHIRANJEEVI NILAYA
3RD CROSS, MUNIYAPPA GARDEN LAYOUT
NEW POLICE STATION ROAD
K.R.PURAM, BENGALURU - 560 036.
... RESPONDENTS
(BY SRI T.SESHAGIRI RAO, ADVOCATE FOR R1 AND R2;
SMT. DEVI SOWMYA L., ADVOCATE FOR R3;
SRI SHAMANTH NAIK, ADVOCATE FOR R4)
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).
6
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:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
Petitioner-defendant No.13 is at the doors of this Court
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.
2. Facts in brief, germane, are as follows:
2.1. Brief facts that led the parties to the suit are
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
7
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.
2.2. When things stood thus, the 3rd respondent/plaintiff
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 4th
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
8
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.
3. 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.
4. Learned senior counsel appearing for the petitioner
Sri Jayakumar S. Patil taking this Court through the
documents appended to the petition would seek to
9
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
2nd 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.
5. 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
10
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.
6. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record.
7. 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
11
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/3rd
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.
8. 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
12
properties to their counter claim. The amendment so sought
runs into 8 pages. The proposed amendment is as follows:
"PROPOSED AMENDMENT
Add Paras 6(a), 6(b), 6(c), 6(d) and 6(e) after Para 6
Para 6(a): It is submitted that K.A.Kodandarama, the 7th
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 8th 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.
Para 6(b): It is stated that properties annexed in the schedule
hereinunder which presently stands in the name of K.R.
Saraswathamma the 13th 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.
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.
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,
13
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 13th Defendant who is the daughter of
K.N.Ramaiah with that of K.V.Gopal, who was the son of
K.T.Venkatappa.
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.
Add Para 7(a) after Para 7:
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.
Add at the very end:
WRITTEN STATEMENT SCHEDULE PROPERTIES
ITEM NO.1:
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:
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
ITEM NO.2
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:
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
14
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:
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
ITEM No.4:
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:
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
ITEM NO.5
All that is piece and parcel of property bearing House list
No.204, situated at Krishnarajapuram, Bengaluru South Taluk,
Bengaluru and bounded on the:
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
15
ITΕΜ ΝΟ.6
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:
East by : The land of Puttarangamma
West by : The land of Medahalli Venkatasamappa
North by : Tank bed of Yengiahnakere
South by : Shanbhogilnamthi land
ITEM NO.7:
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:
East by : The land of Puttarangamma
West by : The land of Medahalli Venkatasamappa
North by : Tank bed of Yengiahnakere
South by : Shanbhogilnamthi land
ITEM NO.8
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:
East by : The land of Puttarangamma
West by : The land of Medahalli Venkatasamappa
North by : Tank bed of Yengiahnakere
South by : Shanbhogilnamthi land
ITEM NO.9
All that is piece and parcel of immovable property being
agricultural land bearing No.117 measuring to an extent of 32
16
Guntas and assessed at 1-55 situated at Krishnarajapura
Village, Krishnarajapura Hobli, Bengaluru South Taluk and
bounded on the:
East by : Thotilnamthi lands
West by : Thotilnamthe lands
North by : The lands belonging to VenkataramanaSetty
South by : Temple Inam lands
ITEM NO.10
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:
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
ITEM NO.11:
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:
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
ITEM NO.12
All that is piece and parcel of immovable property being
agricultural land bearing Sy. No 32, measuring to an extent of
17
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:
East by : The land belonging to Soorappa
West by : The boundary of Krishnarajapuram
North by : The land belonging to SubbarayaSetty
South by : Channel
ITEM NO.13:
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:
East by : The Mariappa's land
West by : The land of Dasaratha Setty
North by : The land of Soorapa
South by : Channel
ITEM NO.14:
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:
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
ITEM NO.15:
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:
18
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
ITEM NO.16:
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:
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
ITΕM ΝΟ 17:
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:
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."
About 16 items are sought to be added to the written
statement, as the schedule properties, apart from what is now
19
registered as schedule properties. The concerned Court allows
the application by the following order:
".... .... ....
REASONS
7. 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.
8. 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.
9. 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
20
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.
10. 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.
11. 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.
21
12. 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.
13. POINT NO.2 :: In view of my answer to Point No.1. I
proceed to pass the following:
ORDER
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.
No order as to costs."
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.
229. 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.
10. 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 23 not belong to their branch would cause serious prejudice to the case of the other parties to the partition.
11. It becomes the necessary to notice the affidavit in support of the application filed by defendant No.3. It reads as follows:
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:-
1. 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.
2. 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.
3. 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 2nd Defendant being the eldest of the siblings does know certain aspects which the younger siblings would not be in the know- how 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.
244. I state that after the filing of Written Statement by Defendant No.2, I started to further minutely peruse and go- through the papers in respect of my paternal grand-father:
K.T.Venkatappa's estate and the judicial proceedings pertaining to his estate.
5. 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.
6. 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.
7. 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.
8. 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.
9. I further state that it has come to my knowledge that the deceased - 7th 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.
10. 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 25 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..."
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.
12. In the light of the aforesaid reasons, the order of the concerned Court warrants appropriate interference. Hence, the following:
ORDER
(i) Writ Petition is allowed.26
(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.
(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.
Pending application if any also stands disposed.
Sd/-
(M.NAGAPRASANNA) JUDGE bkp CT:SS