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2020 DIGILAW 796 (AP)

Kovvuri Tanuja v. Kovvuri Veera Nagendra Reddy

2020-12-11

M.VENKATA RAMANA

body2020
ORDER : M. Venkata Ramana, J. 1. This Civil Revision Petition is directed against orders of learned Senior Civil Judge, Kothapet, in I.A. No. 239 of 2018 in O.S. No. 71 of 2005 dated 28.06.2019. 2. The plaintiffs are the petitioners. Respondents 1 to 6 are the defendants and whereas the 7th respondent is directed to be added as a defendant to the suit by the impugned order. 3. The petitioners instituted the suit for partition and for division of the plaint schedule properties into nine equal shares, to allot them two such shares and for some other reliefs. 4. The plaintiffs claimed themselves as the daughters of the 1st respondent born to Smt. Kovvuri Seetha Venkata Nagalakshmi. The fourth respondent was the wife of the 2nd respondent. Both of them are no more. Respondents 1 and 3 are their sons. Respondents 6 and 7 are their daughters. The 5th respondent is the brother of 4th respondent. The plaint schedule properties are claimed being joint family properties by the petitioners and as coparceners entitled for share therein. 5. The suit was initially disposed of granting a preliminary decree in favour of the petitioners by the decree and judgment dated 30.01.2010. An appeal was preferred against it in A.S. No. 70 of 2011. The 7th respondent had instituted a suit in relation to a part of the plaint schedule properties concerned to O.S. No. 71 of 2005 in O.S. No. 16 of 2012 to which the petitioners and other respondents were parties. The 6th respondent though remained ex parte in O.S. No. 71 of 2005 preferred A.S. No. 16 of 2015. Both these appeals, viz., A.S. No. 70 of 2011 and A.S. No. 16 of 2015 were heard together by the Court of learned II Additional District Judge, East Godavari District, at Amalapuram and was disposed of by a common decree and judgment dated 27.04.2018 remanding the matter particularly with reference to O.S. No. 71 of 2005 to the Court of learned Senior Civil Judge, Kothapet. The directions in this judgment are that the trial Court should receive the written statement of the sixth defendant (6th respondent herein), to implead necessary parties, that the parties to adduce additional evidence basing on the documents produced at the appellate stage and settle necessary additional issues among other things. 6. The directions in this judgment are that the trial Court should receive the written statement of the sixth defendant (6th respondent herein), to implead necessary parties, that the parties to adduce additional evidence basing on the documents produced at the appellate stage and settle necessary additional issues among other things. 6. Pursuant to such directions, in as much as the 7th respondent is found to be a necessary party to the suit, the petitioners filed I.A. No. 239 of 2018 in the suit under Order I Rule 10 CPC read with Order VI Rule 17 CPC and Section 151 CPC. Consequential amendment is sought thereupon setting out as follows: "A. By adding word "since died" against the names of the defendants 2 and 4 in the short cause title and long cause title of the plaint. B. By adding the name of the 7th respondent as 7th defendant after the name of 6th defendant in the short cause title and long cause title of the plaint. C. By adding the following paragraph as paragraph 9B, 9C and 9D after paragraph 9A of the plaint: 1) 'Para 9B: It is submitted that the 6th defendant Medapati Padmavathi and the 7th defendant Dwarampudi Nagamani are the only daughters of the defendants 2 and 4 and they are the sisters of defendants 1 and 3. The defendants 6 and 7 disclaimed their shares in the plaint schedule properties. But in view of the directions in the decree and judgment dated 27.04.2018 the District Court in A.S. Nos. 70/2011 and A.S. No. 16/2015 preferred by defendants 1 and 6 against the earlier decree and Judgment dated 30.01.2010 passed by this Court, the 7th defendant is added as party to the suit. After passing of the decree dated 30.01.2010 by the Court, the 7th defendant is added as party in the final decree proceedings I.A. Nos. 90, 91 of 2011. While so, the 7th defendant filed a suit in O.S. No. 16 of 2012 before this Court against the plaintiffs and the other defendants for declaration of her alleged title and for injunction in respect of an extent of Ac. 0.67 ½ cut of Ac. 1.35 cents in R.S. Nos. 10/7 and 14/4 which is part of items 1 and 2 of the plaint schedule properties alleging that she purchased the same under an alleged sale deed dated 01.10.2007 executed by the 4th defendant. 0.67 ½ cut of Ac. 1.35 cents in R.S. Nos. 10/7 and 14/4 which is part of items 1 and 2 of the plaint schedule properties alleging that she purchased the same under an alleged sale deed dated 01.10.2007 executed by the 4th defendant. The said suit was dismissed on 18.07.2014 after contest with costs. In the said suit, the 7th defendant never claimed any share in the plaint schedule properties except seeking declaration of title on the basis of the alleged sale deed dated 01.10.2007 which was held to be a collusive and nominal one created with the active support of the son-in-law of the 6th defendant herein. The decree and judgment dated 18.07.2014 in O.S. No. 16/2012 became final as no appeal has been preferred by 7th defendant and the same is binding on the 7th defendant. Thus, the plaintiffs are entitled to ask for partition of the plaint schedule properties including the said extent of Ac. 0.67 ½ cents which is part of items 1 and 2 of the plaint schedule properties. 2. Para 9C-"After passing of the decree dated 30.01.2010 by the Court the 2nd defendant died on 17.06.2011 leaving behind him his two sons i.e. defendants 1 and 3, his wife i.e. D4 and his two daughters i.e. defendants 6 and 7 as his only legal representatives. Subsequently, the 4th defendant also died on 08.12.2016 leaving behind her the defendants 1, 3, 6 and 7 as her legal representatives. In view of the subsequent death of defendants 2 and 4, the plaintiffs are entitled to 2/6th share in the plaint schedule properties, while the 1st defendant is entitled to 1/6th share and the 2nd defendant is entitled to 3/6th share. In case the Court holds that the defendants 6 and 7 are also entitled to shares in view of the amendment Act No. 39/2005, the 1st defendant has got 3/12th share in which the plaintiffs are each entitled to 1/12th share i.e. 2/12th share in the plaint schedule properties while the other defendants 3, 6 and 7 have got 3/12th share each." 3. "Para 9D as submitted above all the plaint schedule properties are joint family properties and the 2nd defendant being the father manager used to manage the plaint schedule properties. Most of the properties are ancestral properties of the 2nd defendant. The 2nd defendant obtained an extent of Ac. "Para 9D as submitted above all the plaint schedule properties are joint family properties and the 2nd defendant being the father manager used to manage the plaint schedule properties. Most of the properties are ancestral properties of the 2nd defendant. The 2nd defendant obtained an extent of Ac. 2.50 cents which includes items 7 to 9 of the schedule properties by virtue of a registered partition deed dated 29-08-1961 with his father and brothers by names Kovvuri Satyam, Verreddy, Venkata Reddy and Appa Reddy. The 2nd defendant with the aid of the joint family properties acquired the rest of the schedule properties. The schedule properties are treated and enjoyed as joint family properties by the 2nd defendant and his family members. The 1st defendant or the 4th defendant have no right to execute any documents in the name of the defendants 6 and 7 and the alleged documents are not true, valid and binding on the plaintiffs. The documents if any obtained in the names of any of the family members including the D.4, D.6 or D.7 are only nominal and they are part and parcel of the joint family properties. None of the family members have got any capacity to purchase as they have no independent source of income to acquire any properties. The acquisitions if any in the names of any members of the family are only nominal and the father/2nd defendant being the father manager acquired the properties for the benefits of the family and enjoyed the same as joint family properties. In fact, the defendants 1 and 4 never claimed independent title to any of the plaint schedule properties during their life time. As submitted above the defendants 6 and 7 have disclaimed any shares in the plaint schedule properties they are not entitled to ask for partition of the properties. In fact, the defendants 1 and 4 never claimed independent title to any of the plaint schedule properties during their life time. As submitted above the defendants 6 and 7 have disclaimed any shares in the plaint schedule properties they are not entitled to ask for partition of the properties. In case the Court holds that the defendants 6 and 7 are also entitled to shares in view of the amendment Act No. 39/2015, the 1st defendant has got 3/12th share in which the plaintiffs are each entitled to 1/12th share i.e., 2/12th share in the plaint schedule properties while the other defendants 3, 6 and 7 have got 3/12th share each." D. By substituting the following para in the place of the existing para 10 of the plaint: "Under the above circumstances the plaintiffs are entitled to ask for partition of the plaint schedule properties into 6 equal shares by metes and bounds and allotment of 2 such shares to the plaintiffs; also for past profits for the last two years. The defendants are bound to submit to the reliefs prayed for. Inspite of demands and the defendants are not complying with the same." E. By substituting the following para in the place of the existing valuation para 13(a) "The value of the plaintiffs 2/6th share (1/6 + 1/6) is Rs. 3,61,547.60ps (rounded to Rs. 3,61,548/-) 3/4th comes to Rs. 2,71,160.74 (Rounded upto Rs. 2,71,161/-) Hence a court fee of Rs. 5,226/- is payable as per Art. 1(c) of Sch. I of ACF Act." F. By substituting the following para in the place of the existing para 14(a) of the prayer portion of the plaint: Para 14(a) for partition of the schedule property into 6 equal shares by metes and bounds and allot 2 such shares to the plaintiffs and put them in possession of the same: G. By adding the following paragraph as paragraph 14(a1) after paragraph 1(a) of the prayer portion of the plaint: Para 14(a1): "In case the Court holds that the defendants 6 and 7 are also entitled to shares in view of the Amendment Act No. 39/2005, for partition of the plaint schedule properties into 12 equal shares and for allotment of 2/12th share to the plaintiffs." 7. The petitioners apart from setting out the directions in the judgment of the appellate Court contended that though the 6th respondent remained ex parte in the suit after her addition, she preferred A.S. No. 16 of 2015, referred to above. They further contended that the 7th respondent was brought on record as a party in final decree petition in I.A. Nos. 90 and 91 of 2011 basing on the preliminary decree initially passed in their favour. They further contended that O.S. No. 16 of 2012 filed by the 7th respondent claiming Ac. 0.67 ½ cents out of items 1 and 2 of plaint schedule properties against the plaintiffs and the defendants in O.S. No. 71 of 2005 basing on alleged sale deed dated 01.10.2007 executed by the 4th defendant, was dismissed on contest by the decree and judgment dated 18.07.2014. In that suit, the 7th respondent has not claimed any share in the plaint schedule properties according to them. They also stated that the amendment set out above are consequential in nature upon addition of the 7th respondent and the extent of shares also gets altered on account of Act 39 of 2005 amending Hindu Succession Act. 8. The main contest offered in this case is by respondents 3, 6 and 7. While they admitted that in view of the directions in the judgment of the appellate Court, remanding the matter, 7th respondent has to be added as a defendant to the suit and that the petitioners are entitled to amend the plaint consequentially. They further contended that the petitioners cannot go beyond the facts and circumstances available by the date of the suit. They further contended that reference to O.S. No. 16 of 2012 in the proposed amendment is not permissible, since the 7th respondent was not a party to this suit initially, that made her to file the above suit. While referring to the observations of the trial Court in the judgment in O.S. No. 16 of 2012, these respondents questioned the nature of proposed amendment in para-9B. 9. These respondents also contended that the proposed amendment set out in para 9D was never the case of the petitioners in the plaint when it was originally presented and it was not brought on record by an amendment to the plaint when the suit was pending. 9. These respondents also contended that the proposed amendment set out in para 9D was never the case of the petitioners in the plaint when it was originally presented and it was not brought on record by an amendment to the plaint when the suit was pending. They contended that the petitioners are barred from raising such contentions since they are beyond the directions of the appellate Court. They also questioned the claim against 7th respondent as barred by time. 10. These respondents further contended that the proposed amendments would cause prejudice and loss, since they are going to change the cause of action as well as nature of relief. 11. Upon considering the pleadings as well as the material, the trial Court allowed the above petition in-part permitting addition of 2nd respondent as 7th defendant to the suit while holding that the proposed amendments in paras 9B and 9D would change the nature of the suit, declined to permit the amendment to that extent. Remaining amendments were permitted by the impugned order. 12. It is against rejection of part of relief in the above petition for impleadment and amendment, the petitioners have presented the present civil revision petition. 13. Heard Sri E.V.V.S. Ravi Kumar, learned counsel for the petitioners and Sri S. Subba Reddy, learned counsel for the contesting respondents. 14. Now, the point for determination is: 'Whether learned trial Judge is justified in rejecting a part of the proposed amendments to the plaint and if reasons assigned therefor, are proper?' 15. The nature of relief sought in the petition for impleading 7th respondent and consequential amendments should be considered to resolve the present question in this matter. The main objection for the contesting respondents is with reference to merits of the proposed amendment. However, in the counter they came up with specific caveat that such proposition of law, having regard to the nature of the proposed amendment, need not be relied on and necessarily the character and nature of these amendments as well as their purpose, possibly affecting their defence in the suit should be considered. 16. In terms of Order I Rule 10(4), in case of addition of a defendant, the plaint has to be amended. It is desirable to extract the same hereunder for facility. 16. In terms of Order I Rule 10(4), in case of addition of a defendant, the plaint has to be amended. It is desirable to extract the same hereunder for facility. "Where defendant added, plaint to be amended:-Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant." 17. A careful reading of this provision leaves no manner of doubt that plaint is required to be amended when a defendant is added in such a manner as may be necessary. However, it is subject to directions of the Court and if the Court directs otherwise, as can be culled out from the text of this provision, amendment of the plaint can be excluded. It does not in any manner restrict the nature and extent of the amendment. 18. In para 6 of the plaint, there are specific averments against the 1st and 2nd respondents alleging that they were acting against the interests of the petitioners. Further allegations in the same paragraphs are to the effect that both of them were acting in collusion along with other defendants bringing out certain false documents in order to avoid giving away legitimate share to the petitioners. It is also alleged therein that they are entitled for maintenance by the defendants personally and out of joint family properties. 19. The defendants, as seen from their defence in the suit, questioned the paternity of the petitioners denying that the first respondent is their father. 20. Sri E.V.V.S. Ravi Kumar, learned counsel specifically referring to the above contents of the plaint contended that, since the interests of the petitioners in the properties in question are involved, which are joint family properties, it is necessary for them to state such facts as set out in the proposed amendments in para 9B and para 9D. Thus, learned counsel contended that they furnish certain better particulars and as a method of elaboration of their stand. Thus, learned counsel contends that these facts are necessary for the petitioners to substantiate their claim and therefore, it cannot be stated that a new case is sought to be made out, making a departure from their original stand in the plaint. 21. Thus, learned counsel contends that these facts are necessary for the petitioners to substantiate their claim and therefore, it cannot be stated that a new case is sought to be made out, making a departure from their original stand in the plaint. 21. In this context, Sri E.V.V.S. Ravi Kumar, learned counsel also relied on a very recent judgment of Hon'ble Supreme Court in BHAGWAT SHARAN (DEAD THROUGH LEGAL REPRESENTATIVES) v. PURUSHOTTAM and OTHERS (2020) 6 Supreme Court Cases 387 where the incidences relating to a Hindu Joint Family and property belonged to such family, burden of proof in relation thereto and in considering their nature are discussed. In para-10 of this ruling, it is observed as under: "10...................The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference in this behalf may be made to the judgments of this Court in Bhagwan Dayal v. Reoti Devi AIR 1962 SC 287 . Both the parties have placed reliance on this judgment. In this case, this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family." 22. Sri S. Subba Reddy, learned counsel for the contesting respondents repelling to these contentions adverted to the contents of the proposed amendments in para-9B and para-9D and also the plaint, as appeared at the time of institution of the suit. Thus, it is contended that the proposed amendments bring out a new case completely and that new facts are sought to be introduced, which were never adverted to. Therefore, it is contended by Sri S. Subba Reddy, learned counsel for the respondents that the trial Court is right in refusing these amendments since they also stand away from permissible limits, as per the directions of the appellate Court on remand. Therefore, it is contended by Sri S. Subba Reddy, learned counsel for the respondents that the trial Court is right in refusing these amendments since they also stand away from permissible limits, as per the directions of the appellate Court on remand. Thus, it is contended that taking advantage of such directions of the appellate Court, the petitioners cannot come up with such a devise for completely altering the texture of their claim. 23. While considering amendments of this nature, effect of power of the Court to amend in terms of Order VI Rule 17 CPC should also be borne-in-mind apart from what is stated in Order 1 Rule 10(4) CPC. Consequential amendments when a defendant is added and required procedure to follow are also stated in Rule 28 of the Civil Rules of Practice. 24. As rightly contended by Sri E.V.V.S. Ravi Kumar, there are certain foundational facts in this respect in para–6 of the plaint. The course, pertinent to consider is the structure of this family attributed by the petitioners as a Hindu Joint Family and the plaint schedule properties are described by them as the properties held by this family. It is the burden of the plaintiffs to establish these facts adducing appropriate evidence in the course of trial. On account of addition of 7th respondent, who is one of the daughters of the deceased 2nd and 4th respondents, when it is open for the petitioners to raise amendments, the respondents cannot at this stage question such an attempt. This claim of the petitioners, in a way, at this stage of the suit upon remand by the appellate Court, cannot be interdicted in such a manner. 25. Whether there was really a necessity to remand the matter for the appellate Court, in given facts and circumstances of the case and basing on the material available on record, it is not relevant or germane for the present purpose except to state that it is 'much ado about nothing'. 26. Nonetheless, this remand of the matter gave raise to an opportunity for the petitioners to request for the proposed amendments upon addition of the 7th respondent to the suit. 27. The precise effect of the objections of the respondents relates to questioning the nature of the proposed amendments and thus it touches upon the merit of the proposed amendments. It is clearly impermissible. 27. The precise effect of the objections of the respondents relates to questioning the nature of the proposed amendments and thus it touches upon the merit of the proposed amendments. It is clearly impermissible. Added to it, the explanation of the petitioners that these proposed amendments are nothing but elaboration of the facts already pleaded furnishing certain better particulars, cannot altogether be ignored or overlooked. 28. The respondents would not stand to any prejudice if they are allowed in as much as they have every right to question them by way of further pleadings in the nature of additional written statements. They have every right to question such claim of the petitioners in the course of trial when evidence is sought to be let-in to prove these facts by the petitioners. Even the facts adverted to by the petitioners are based on inter se transactions among the members in this family. Therefore, they do not in any manner stand to surprise by these proposed amendments. 29. Thus, when larger questions are open for consideration, having regard to the nature of the dispute between these parties, the manner in which learned trial Judge considered the request, in respect of a part of consequential amendments is not proper and their rejection is not justified. 30. Therefore, finding merit in the contention of the petitioners, this revision petition has to be allowed setting aside the impugned order to the extent of denying the relief to the petitioners. 31. In the result, this Civil Revision Petition is allowed. Consequently, order of learned Senior Civil Judge, Kothapet, in I.A. No. 239 of 2018 in O.S. No. 71 of 2005 dated 28.06.2019 rejecting a part of amendment of the plaint, to incorporate para 9-B and para 9-D in the plaint, is set aside. Consequently, the petitioners are entitled for amending the plaint as sought in I.A. No. 239 of 2018 in O.S. No. 71 of 2005. No costs. Pending petitions if any, stand closed. Interim order granted on 05.08.2019 is set aside.