Mahadevamma @ Gangamma vs Siddappa on 26 August, 2014

Karnataka High Court

Mahadevamma @ Gangamma vs Siddappa on 26 August, 2014
Author: Anand Byrareddy
1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 26TH DAY OF AUGUST 2014

BEFORE

THE HON'BLE MR.JUSTICE ANAND BYRAREDDY

WRIT PETITION NO.38168 OF 2014(GM-CPC)

BETWEEN:

Mahadevamma @ Gangamma
Since dead by LR.s.
Plantiff No.2 and 3

1. K.Manjunath
S/o late Siddaiah
Aged about 52 years

2. Nagaraj
S/o late Siddaiah
Aged about 49 years
Both are Residing at Kantanahalli,
Aaruthur Hobli, Kunigal Taluk,
Tumkur District
Now residing at N.R.Pura,
Hebbe Road, Hulluvalli,
Chikkamangalur District.
...PETITIONERS
(By Shri Mushtaq Ahmed, Advocate)
2

AND:

1. Siddappa
S/o Beguraiah
Dead by LR.s.

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 Mahadevamma @ Gangamma vs Siddappa on 26 August, 2014

1(a) Gangahuchamma
Aged about 90 years
W/o late Siddappa,

(b) Devaraja
S/o late Siddappa
Dead by LR.s

1(b)(i) Kamalamma
W/o late Devaraja
Aged about 50 years

1(b)(ii) Sreedhara
S/o late Devaraja
Aged about 33 years

1(b)(iii) Sumithra
D/o late Devaraja
Aged about 30 years

1(c) Shankar
S/o late Siddappa
Aged about 50 years

1(d) Ramesh
S/o late Siddappa
Aged about 45 years

All are residing at

Kantanahalli,
3

Aaruthur Hobli, Kunigal Taluk,

Tumkur District.

2. Savalaiah
S/o Beguraiah
Aged about 62 years

3. Channaiah
S/o Beguraiah
Aged about 60 years

4. Channaiah
S/o Chikkaiah
Dead by LR.s

4(a) Manchamma
Aged about 86 years

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 Mahadevamma @ Gangamma vs Siddappa on 26 August, 2014

W/o late Chikkaiah

4(b) Vasantha
Aged about 59 years
S/o late Chikkaiah

Residing at Kantanahalli,
Aaruthur Hobli, Kunigal Taluk,
Tumkur District. ...RESPONDENTS

*****

This Writ Petition is filed under Article 226 and

227 of the Constitution of India praying to quash
Annexure-G dated 24.7.2014 passed in
O.S.No.389/1992 by the Prl.Civil Judge & JMFC at
Kunigal and permit the petitioner to amend the plaint
and further orders.
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This Writ Petition coming on for preliminary

hearing this day, the court made the following:-

ORDER

The petitioners were the plaintiffs in the court below. The suit is for partition and separate
possession. The suit having run its course was decreed in favour of the plaintiffs. The same having
been challenged in an appeal, the appellate court has remanded the matter for a fresh consideration.
At that stage, the defendants sought to produce a document to evidence that there is a sale deed in
their favour. It is the plaintiff's case that he had no occasion to prove his case. But since the
document was produced on remand by the court below, it is necessary for the plaintiff to plead and
pray that the said sale deed is not binding on him and accordingly he sought to amend the prayer
column to include the prayer. The court below having rejected the application, the petitioner is
before this Court.

2. Admittedly, the suit is for partition and separate possession. It would raise a presumption that
there was no partition of the joint family properties. If there was a sale in respect of one of the joint
family properties without the consent of the present petitioner, it would not be binding on him. In a
suit for partition, it is not necessary that there should be a pleading and prayer to set-aside a sale
deed which is void abinito, as it involved joint family property and if it is without the consent of the
petitioner. At best it would bind only to the extent of the share if any of the vendor therein and if he
is entitled to that the portion of the joint family property. Therefore, in such circumstances, it is not
even necessary for the petitioner to have amended the prayer. Rejection of the prayer shall not
prejudice the petitioner's case and it is open to him to plead that the sale deed is not binding on him
having regard to the nature of the property and nature of the suit. With these observations the
petition stands disposed of.

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 Mahadevamma @ Gangamma vs Siddappa on 26 August, 2014

Sd/-

JUDGE JJ

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