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2012 Supreme(Mad) 4064
High Court of Judicature at Madras
R.S. RAMANATHAN
Rani & Another
Versus
Chandra & Others
C.R.P.(PD)No.3462 of 2012 and M.P.No.1 of 2012
Decided On : 05-10-2012
Advocate Appeared:
For the Petitioners:S. Sounthar, Advocate.
For the Respondents:R1, L. Rajasekar, Advocate.
The main legal point established is that in a suit for partition, all properties belonging to the family must be made available for partition, and amendments for including properties can be allowed for proper and effective adjudication of the case.
Headnote:
Amendment - Suit for Partition - Order 6, Rule 17 CPC - A.A.GANGA v. A.R.USHA (2010 (4) CTC 331) - Revajeetu Builders & Developers vs. Narayanasamy & sons, 2009 (10) SCC 84 : 2009(13) Scale 241 - Vidyabai and others vs. Padmalatha and another, 2009(2) SCC 409 - North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das (died) by L.Rs., 2008(8) SCC 511 - Usha Ahamed vs. Rijwan Ahamd and others, 2008(3) SCC 717 - Rajkumar (Dead) through L.Rs. vs. S.K.Shrwagi and Company Private Ltd. and other, 2008(5) CTC 253(SC):2008(14) SCC 364
Fact of the Case:
The suit was filed for partition. The revision petitioners sought to include properties purchased in the name of the first respondent and her husband to the plaint schedule through an amendment, which was dismissed by the court below. The revision petitioners appealed against this decision.
Finding of the Court:
The court found that in a suit for partition, all properties belonging to the family must be made available for partition. The court also referred to various judgments to establish guidelines for allowing amendments in such cases.
Issues: The main issue was whether the properties purchased in the name of the first respondent and her husband should be included in the partition.
Ratio Decidendi: The court relied on legal principles from various judgments to determine that the amendment for including properties in a suit for partition can be allowed for proper and effective adjudication of the case, and refusing the amendment would lead to the multiplicity of proceedings.
Final Decision: The court set aside the order of the court below and allowed the revision, subject to the payment of costs by the revision petitioners. The first respondent was permitted to file a reply statement, and the court directed the disposal of the suit within a specified period.
Defendants 1 and 2 are the revision petitioners.
2. The first respondent herein filed the suit for partition and the revision petitioners filed written statement stating that some of the properties purchased in the name of the first respondent and her husband were not included though they also belong to the joint family. Thereafter, no steps were taken by the revision petitioners to include those properties to the plaint schedule and after the plaintiff's side witness was examined in chief, the revision petitioners filed application to include certain properties purchased in the name of the first respondent/plaintiff and her husband to the plaint schedule and that application was dismissed and as against the same, this revision is filed.
3. It is submitted by the learned counsel for the revision petitioners that in the written statement itself, necessary allegations were made and being a suit for partition, the entire properties belonging to the joint family are to be made available for partition and for that purpose, the application for amendment was filed and though it was filed after commencement of trial, no prejudice would be caused to the respondent and the suit will also be liable to be dismissed for partial partition if the revision petitioners are able to prove that some other properties are also available for partition and therefore, to have a complete adjudication, the court below ought to have allowed the application for amendment. The learned counsel for the revision petitioners relied upon the judgment in A.A.GANGA v. A.R.USHA (2010 (4) CTC 331) in support of his contention.
4. On the other hand, the learned counsel appearing for the first respondent submitted that the court below has rightly dismissed the application stating that no proof was adduced by the revision petitioners to prove that the properties which are sought to be included were purchased in the name of the first respondent and her husband from and out of joint family income and the first respondent and her husband are employed and having independent income and therefore, it cannot be stated that the properties were purchased out of joint family income. He further submitted that though the order was passed on 15.2.2011, the revision petitioners were able to drag on the proceedings under the pretext of pendency of revision and the revision is filed only in August 2012 and therefore, the petition may be dismissed with cost.
5. Admittedly, the suit is for partition and in a suit for partition all the properties belonging to the family must be made available. It is the case of the revision petitioners that the properties which are sought to be included by way of amendment also belong to the joint family, though purchased in the names of the first respondent and her husband and those properties are also available for partition. As stated supra, in the written statement also, it is stated that two acres of property was purchased in the name of the husband of the first respondent and that property is also made available for partition. Though the first respondent denied the allegation that the properties were purchased out of joint family income and asserted that from their own income, the properties were purchased in their names, that can be decided only during trial and at this stage, the court need not have decided about the character of the properties.
6. In the judgment referred to above, I had an occasion to deal with the post trial amendment and the case involved in that judgment is also a suit for partition. In that case, after referring to various judgments of the Supreme Court, it has been held as follows:-
"10. In the case of Revajeetu Builders & Developers vs. Narayanasamy & sons, 2009 (10) SCC 84 : 2009(13) Scale 241, the Apex Court has considered the scope of Order 6, Rule 17 CPC and has given certain guidelines and they are follows:-
1. Whether the amendment sought is imperative for proper and effective adjudication of the ca
