.1. IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23R" DAY or NOVEMBER, 2010 BEFORE THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.33391/2010 (C-;M~cp_c,)'--TV"7'Tf3 K BETWEEN: C.Narayana @ Babe; S/0. late Chikka Byanna, Aged about 38 years, V R/0. No.486, 15* Main, 7"' 'A' Cross, Vijayanagar II Stage';-T. Bangalore -- 560 040. ' ii ...'PETITIONER (By Sri Shanmukhappatfoara APrci--\J_s.) 1. Smt. Vijaya, . D/_o. late"Ch'i!<Vka.byann~a, W;/0.y.Nagara3f_C.' ' about 48 rs, R;'0."'1\I0._4'8.6, 15* Main, T = T'/'"'_'A['Cr'0ss,*~Vijayanagar 11 Stage, _"-Tfifiangvamre~}V'»5'6O 040. bu' 2. §~'3--~rnt;._' 'M aAa::§"aAm ma, W/0. 'irate Chikkabyanna, . Aged'-'about 83 years. Sharadamma, ; W/0. late Chikkabyanna, T Aged about 68 years. 4. Sri Mahesh, S/o. late Shamanna, Aged about 38 years. 5. Smt. Rathnamma, W/o. Raghu, Aged about 48 years. 6. Smt. Bhagya, W/O. Mohan, Aged about 44 years. 7. Smt. Leeia, W/o. Devaraj, Aged about 43 years. 8. Smt. Prabha, W/o. Jayachandra, Aged about 41 years. All are residents of i\'.o§,a-186-_, 15' Main, 7"' 'A' cross, I . Vijayanagar 2*?" Stage.,._ _ ' Bangalore : E3.60~_04C). " ' 3. ' RESPONDENTS
(By Sri Su”h:..I,__S.,Ra”o., C/R1)
,,._iTHIs wR”IT._,,I>ETITION IS FILED UNDER ARTICLES 225
‘ ‘v.ANE;x_2’2??—AQRTHE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR THE_REC;QRDS AND SET ASIDE THE IMPUGNED ORDER
D:ATEO_ ‘2.9″”_SEPTEMBER 2010 PASSED IN O.S.NO.25594/2007
E’B.Y’«.I’THE’v f*L,EARI.I.E’D – CITY CIVIL JUDGE, MAYOHALL UNIT,
BA..NGIALOREIf§/IEDE ANNEXURE – A ON THE APPLICATION FILED
UNDER 6 RULE 17 WW SECTION 151 OF THE CPC.
PETITION COMING ON FOR PRELIMINARY HEARING
IQIN ‘EQGROUP THIS DAY, THE COURT MADE THE FOLLOWING:
QRDER
The 13*’ respondent/plaintiff has filed
O.S.No.2S594/2007 in the City Civil Court, Bangalore,
against respondents 2 to 8 and the petitioner, whoui’s_:th_e
8″‘ defendant in the suit, for partition and Otl’iel”_f:”.é.l’i’€.?-£5′,-.’.__A:iésififl M
appiication was filed by the plaintiff on ”
permission to amend the plaint. ::__The…a.ppii,cat,i’0’n4″iaayingga8′
been allowed, the 8″‘ defendant-ihas fi’ie§i’this ‘.ri’r’§tV.p:etltio;n;’l
2. Sri Shanmulg<happa,,_._.lea.r_n'e.d cohunsei appearing
for the petitioner, firstlylizon-ten,_ded:. tth-e_ trial court has
failed notice,t-i:ha__»t"by"fil_l'i'n_g the application the plaintiff is
seeking 'for lithe plaint, which is totally
inconsistent wit.h"Vthe' averments made in the plaint.
itLeartned;'""'couns.el submits that, the admission made in the
A"piai-n_t%.l'h"a'S"~~.b_ee.lnv.-sought to be erased by way of proposed
amendrn_'er.t.3A He contends that, the tenable objections
;"fi!.ed_, hassnot been considered and hence, the impugned
,._'ord'erVéis irrational and illegal. Secondly, application for
-amendment fiied earlier was aliowedgo be withdrawn
»/”.
the said Will in favour of one S.T.3ayaram under a sale
deed dated 30.10.1992.
8. The suit was filed for partition claiming 1/4″”
share and to direct the defendants to put the plaiVnti._fiVin
separate possession of her 1/4″‘ share. The’_pet«iti’o.n:e1’rp’
who is the 8*” defendant in the suit, ha_s..—-fi.l_ed’wifittenv””
statement. The petitioner filed an :appli.i:atio’n>
7 Rule 11 CPC for rejection’ of the’p!aint_,»”wVh,Li:;;h was
allowed and the plaint was rejVe’t:t’eci_VonV”t’i*le2:groii:nd that,
the plaintiff had no cau’s;e_”of a.j:’tio,njto__fil;e–«the suit.” Plaintiff
filed the said order. The
aPDeal 3llow_edj.’A’–on”‘-«.b’8;’C6.2009. Plaintiff filed an
applioatioAn seeking °per’mission of the court to amend the
.«”plainitV.i.E’e}, incorporate additional pleading as paras
for declaratory relief that, the Will
2 date-d__ 2.S.O93.f1986 executed by late Chikka Byanna is not
ll””fifloippndino; on the plaintiff. The plaintiff has filed memo dated
:”2.o’.o2:}’2o1o to withdraw the said application and the
l .,prayer therein was allowed. \
/”
K .
9. The plaintiff filed an application on 20.02.2010
under Order 6 Rule 17 CPC seeking permission to insert in
the plaint the proposed amendment at paras 5(a) to (n)
and additional prayers (aa) (ab) & (ac). The reasons
stated in the affidavit in support of the prayer _
of the amendment are that, to bring_-~homje:”eei<tain:"
necessary facts which allegedly o.ame.-t_d if
pursuant to the defendant filing virri.tten stateymrrent
that, the proposed amendmenVt"V«irs a measure: to} explain
certain facts.
130. _fndrisyputedIy,”‘«.a_ctin_g on the registered Will
dated 2S.,_0’9,,198_t3 by Chikka Byanna, the
respondent Nor-,1/plaintiffrrrand the defendants 4 to 7 have
property bequeathed under the said Will, in
cfavour ~of«v..g”rie.i’-S;T.3ayaram under a registered sale deed
dated 3,__0.’1.0.}’i992. The covenants in the said sale deed
u”””–..r:”wit,h regard to the said testament is to the following effect:
” 2′ .i5″Whereas, one Sri Chikka Byarma, S/o.
Mitmishamappa. (the father of the vendors herein) was
enjoying the property bearing Municipal No.19, situated at
k
/’
rt
3″‘ Main, Hosahalli extension, Vijayanagar, Bangalore, a-sits
sole and absolute beneficial owner together with
properties. which he acquired by virtue of a family”partitijoln.:_it
which is duly registered in the office of the S
Bangalore North Taluk, on 13.7. ]..96oO._and_’
document No.3].25 of Book–I, Volume:1$)’l5} ir1..pa.ges”i}5~2__ to it
16].
And whereas, the said Srilbhiizka during his
life time while enjoying theu_aboVe”‘sai:Clg operty together with
all rights, lawful titles etc’.;t testament
Will, on 25.9.1986, which jduhpeeg’iet:efe’:t— in the office of
the Sub–Regist:rar”:;;.e:$ri_rampura1’n; :Ba’nga_lore on 25.9.1986,
as Volurne:2], in pages
49 to bequeathed all the
properties unto his wives and children.
And the em E3-yanna, through the above
testanientllexplained this and allotted a port.ion of site
meagsuriiig East VWest. 30′ feet and North to South 120′
Sl”fectl;t.,fijmjlltlcie’ East out of property bearing Municipal
daughter Smt. Bhagyamma [the vendor
andlallotted a portion of site measuring East to
West. 40Vf_”§”eet’*”and North to South 30′ feet, on the south side
Kin Easteifn side out of the same property bearing No.19, unto
A daughter Snot. Vijayarnma {the vendor No.2, herein] and
allotted other portion of site measuring East to West 40′ feet
stand North to South 30′ feet on right–half middle side on
Eastern portion out of the property bearing No.19, unto his
/”
‘{
10
daughter Smt. Prabhavathi (the vendor No.3, herein], and
allotted a portion of site measuring East to West 40′ feet and
North to South 30′ feet, on left–half middle side on Eastern
portion, out of property bearing No.19, unto his daughter
Smt. Leelamma (the vendor No.4 herein) and also allotted
another portion of site, measuring East to West ”
North to South 30′ feet, on the North Side in Eastielrn if
out of the same property bearing unto”his:’_da’ughte1’a.V
Smt. Rathnamma {the vendor No.5, l:1A_ere:ir1,]«,fj.’t_he fsaidp f
Chikka Byanna, died intestate on 21,3. leaving behindf”
the above said Will for his succe-ssoijs.
And whereas sub.s’equent”to”theulfdeath fof’SriV4Chikka
Byanna, the Will bearing”i*egistere.d,v N’o.:62g/A8687, has come
into effect and aCC0rdingly.,.th,e’\Zend’o1’sV’l”lo.’l to 5, herein
above named werg..,pec0ti1e’V”s.ole and absolute owners to their
respective portior1S’o.ir’~lA11d whereas, even the vendors
herein beingoindividual owners of their respective shares.
up wereenjoying thesaid five portions of sites in joint making it
Vasgavsinzgfile unit and are in peaceful possession of the same
tgiricgs’ from ‘the date of their acquisition.
vendors herein Smt. Bhagyamma, Smt.
Vila§a,mi.na,’v'”;Sn1t. Prabhavathi, Smt. Leelamma and
if'”.__V”‘Smt.Ratv1i1riamma, are the sole and absolute beneficial
“t’0wnfei=s of the site measuring in all East to West 82’~–0’ feet
— [inclusive of 12′ feet wide passage at the middle of 181
if ..vendor’s share and between the 2″, 4″‘ and 51″ vendor’s
/
11
share which now treated as part and parcel of joint enjoying
site] and North to South 120′ — 0′ feet, being East pvor_t’ioiri.,_
out of property bearing Municipal No.19, (old No.<S:']"'siti;atet1:._A'
at 3"' main, Hosahalli extension, Vijayanagar,"ifiiarijgaiore;
which is rnorefully and specifically »..des=i:'ribeCic–finV' if
'SCHEDULE' hereunder and hereinafter"~rCt7erred-..to 'as;-ethej
'SCHEDULE SITE' and the; _\rendo'rs'V–are peacemit'
possession and enjoyment of the-v._s:a~;;1e wit1'1 .an_1ewtuji"i%:gi1ts,
titles and interest and are at lib.ert3r__acnd 1ega11y_ent?it1ed to
deal with the schedule Sit§"in any .tna.nn_e'r,as they like and
deems fit."
11. rayon} the said item of
property__wyas”‘*so’i’d1}.;:j_s_ not the suit. After about
18 years of thVei’sa’iVe:V’of”property in favour of S.T.Jayaram,
based on ‘the ii’egiVstere’d»- Chikka Byanna, by seeking
ame,,n_drne.nt of”rt..hVe plaint, a declaration has now been
Will dated 25.09.1986 is a concocted
idocijrne”nt”a.ndidoes not bind the interest and share of the
V . plaintiff and’ to declare the sale transaction effected by the
Vi€1f&fe’n’dant on 05.07.1989 in favour of Mr.Brahma Deo
.’ Prasa’d as a avyavaharika transaction, not binding on the
T “interest and share of the plaintiff. It is apparent that, the
4′
13
being ex–facie barred by limitation and since it alters the
character of the action and would cause prejudice to the
contesting defendant, the triai court is not justified in
passing the impugned order. The impugned
irrationai.
In the resuit, the writ petition is al.!~ovveci~..a”i’i:d
impugned order is quashed. No costs. 3
However, it is made c|eaVr”~-t,hat,A’the .t_ria.!V Ac’o__’u’rt…s:ha|I
decide the suit on its rjnerit a,n.ci:’i~n_ ‘a.ccordan.ce with law,
un–infIuenced by any of*the’–c_oias}erKi–ati.o’ns_ made above,
which 1′-i__are_– _fovr_:”‘consideration of prayer for
a men d m ent of th §3.’I’8¢§’Ii.f:,.’ 4′ V.
Edi”:
jadqe