The Karnataka High Court has said only in a trial can it be held whether a property is ancestral property or self acquired properties and therefore amendment of the plaint at the pre-trial stage to include such properties, is permissible.
A single judge bench of Justice Sachin Shankar Magadum rejected a petition filed by K Durga Prasad Shetty, challenging an order dated November 16, 2021 by which the trial court allowed the application filed by the original plaintiffs Dr Shashikala and others under Order VI, Rule 17 read with Section 151 of Code of Civil Procedure, to incorporate additional properties and pleadings in that regard.
The petitioner’s counsel placing reliance on the judgment of the Supreme Court in the case of Revajeetu Builders and Developers .vs. Narayanaswamy and sons and others (2009) 10 SCC 84, said trial Court while dealing with amendment application is under bounden duty to find out whether the amendment application is tainted with malafides and therefore, if at this juncture, the respondent-plaintiff is permitted to bring in the self acquired properties of the petitioner, the petitioner would be put to irreparable loss.
On the other hand the counsel for respondents contended that the amendment was sought at pre-trial stage and therefore, all amendments more particularly those which are sought at pre-trial stage have to be liberally allowed by taking a lenient view.
Moreover, where relationships are admitted and if one of the family members was to assert and claim that particular property is his self acquired property, the said question has to be adjudicated only by a full fledged trial and the parties have to be relegated to trial. At the stage of considering amendment application, the family members cannot be permitted to assert absolute right over a particular property, it was argued.
The bench noted that the respondent (original plaintiffs in the suit) has specifically averred that there is an arrangement in the family where the present petitioner-defendant is entrusted to look after the suit schedule property and is under bounden duty to render accounts of income and expenditure every year and is required to distribute the profits derived from the suit schedule properties. It is also alleged that the petitioner-defendant has utilized the income derived from the joint family ancestral property.
Further in regards to the amendment application the bench said, “By way of amendment the respondents-plaintiffs claim that the properties which are now sought to be inserted by way of amendment are also joint family ancestral properties while the petitioner claims that these properties are his self acquired properties and therefore, not available for partition.”
It held, “These rival submissions made by the plaintiffs and defendant are to be tested only by way of a full fledged trial. Though plaintiffs claim that the properties now sought to be included are also joint family ancestral properties, the said statement has to be corroborated and substantiated during trial.”
It added, “Initial burden is on the plaintiffs. Once the said initial burden is discharged, the onus would shift on the petitioner-defendant. Therefore, it is equally incumbent on the part of the defendant to lead rebuttal evidence to discharge his burden and establish that the properties covered under the amendment application are his self acquired properties. Without having recourse to this adjudication process, neither these properties can be held to be ancestral properties nor self acquired properties. Therefore, the amendment of plaint is absolutely necessary.”
The court also opined, “Merely because the proposed amendment may cause some inconvenience to the petitioner-defendant, on an assumption that it is his self acquired properties cannot be a ground to reject the amendment application.”
Case Title: K Durga Prasad Shetty v. Dr Shashikala and Others
Case No: Writ Petition No 22744/2021
Citation: 2022 LiveLaw (Kar) 290
Date of Order: July 11, 2022
Appearance: Advocate Anandarama K for petitioner; Advocate Shravanth Arya Tandra for R1-3