In a partition suit, the defendant is entitled to file an application for amendment to include properties left by the plaintiff, and the court may allow such amendment if it is necessary for proper adjudication of the case and would not cause prejudice to the petitioner.

1. This revision is directed against the order dated 26.10.2015 made in I.A. No. 89 of 2015 in O.S. No. 87 of 2012 on the file of the Principal District Court, Madurai, allowing the petition under Order 6, Rule 17 C.P.C. The petitioner herein is the plaintiff and he filed the suit for partition and for permanent injunction.

2. The first respondent, who is the first defendant in the suit filed I.A. No. 89 of 2015 under Order 6, Rule 17 C.P.C. seeking to amend the schedule and to include certain properties in the schedule of properties mentioned in I.A. No. 89 of 2015.

3. According to the first respondent, his parents executed a Will dated 08.05.1988 bequeathing the property and based on the Will, he was in possession of the said property of his own right. He had also filed O.P. No. 1 of 2012, now numbered as O.S. No. 62 of 2015 to probate that Will. According to the first respondent, to counter-blast the O.P. filed by the first respondent to probate, the petitioner had filed the present suit for partition.

4. The grievance of the first respondent is that properties possessed by their father, which were described in the petition, were ancestral in nature, which were also to be included for partition and for that purpose, he had filed the petition under Order 6, Rule 17 C.P.C.

5. The petitioner resisted I.A. No. 89 of 2015 by contending that the suit property belongs to his mother and he filed the suit claiming partition in respect of his mother property alone. He had not filed the suit with regard to his father's property. Therefore, there is no necessity to include his father's property in the suit for partition as sought for by the first respondent.

6. Upon consideration of the rival submission, the trial Court allowed the petition. Assailing the same, the petitioner has filed the present revision.

7. I heard Mr. R.V. Rajkumar, learned counsel for the petitioner and Mr. J. John, learned counsel for the respondents and perused the entire materials available on record.

8. The learned counsel for the petitioner submitted that the trial Court overlooked the very conduct of the first respondent in filing the application to amend the plaint to include certain properties after having participated in the suit proceedings. The trial Court erred in law in not adverting to the absence of any allegation in filing the application seeking for amendment after the delay of nearly three years after filing the written statement. He would submit that the trial Court overlooked indisputably the claim of the petitioner for partition was only in respect of the property belonging to the mother of the petitioner and it is not open for the first respondent to file an application to include other properties belonging to his father and his rights cannot be decided in the suit filed by the petitioner. In support of his submission, the learned counsel relied upon the following decisions:

(i) Vellathuraipandi vs. Lakshmanapandiyan and Another, 2015 (1) TNCJ 61 (Mad)

(ii) Mashyak Grihnirman Sahakari Sanstha Maryadit vs. Usman Habib Dhuka and Others, 2013 SAR (Civil) 717

(iii) Muthuvel vs. Ponnusamy and Others, 2011 (2) MWN (Civil) 259

(iv) Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409

(v) Lakshmi Ammal and Others vs. Sethuramayi and Others, 2014 (3) TNCJ 492 (Mad)

(vi) Solavaiammal and Others vs. Ezhumalai Gounder and Another, 2011 (5) LW 859

9. Per contra, the learned counsel for the respondents submitted that the first respondent filed the written statement in the suit stating that the suit is bad for partial partition and despite that the petitioner has not taken steps to include the properties of their father for partition. He would submit, the parents of the first respondent executed a Will bequeathing the property in favour of the first respondent and that the first respondent had filed O.P. No. 1 of 2012, now numbered as O.S. No. 62 of 2015 to probate the Will and the same is pending for consideration.

10. The learned counsel for the respo