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MADRAS HIGH COURT
R. Banumathi and K.K. Sasidharan, JJ.
K.R. Rajeesh Kumar —Appellant
versus
K. Nalini Raghavan and Ors. —Respondents
O.S.A. No. 402 of 2012 and M.P. No. 1 of 2012
Decided on 26.11.2012
Counsel for the Parties:
For the Appellant:V.M.G. Ramakkannan, Advocate.
For the Respondents:S.R. Raghunathan and M. Kamalanathan, Advocate.
Headnote:Suit for partition-Application for including one item of property to the suit schedule for the purpose of partition-Dismissed by Trial judge-Appeal thereagainst- It is true that respondent1 had included the said property in C.S. No. 1079 of 2009- Merely because the subsequent suit filed by respondent1 contained Ambattur Estate property as an item available for partition, it could not be said that there was no need to include the said item in the Civil Suit filed, by the appellant in C.S. No. 469 of 2008- In fact, it was only the appellant, who had filed the suit earlier for partition- Mother and sister of appellant had no objection for partitioning the Ambattur Estate property- In case, they had no objection for partitioning the property, they should have conceded for including the property in the schedule, so as to decide the issue at the earliest point of time- Admittedly, the property available for partition without any dispute was not included in the suit filed by the appellant- The appellant, therefore, was perfectly correct in filing the application for inclusion of the said item- Since the parties had a common case that Ambattur Estate Property was available for partition, reason that inclusion would delay the trial of the suits would be of no ground to reject the prayer for amendment of plaint schedule-Appellant had made out a case for amending the schedule-Impugned order set aside-Application allowed. (Paras 22 to 25)
Result: Application allowed.
K.K. Sasidharan, J.—This original side appeal is directed against the order dated 13 September, 2012 in Application No. 3953 of 2012 in C.S. No. 469 of 2008. whereby and where under the learned Judge was pleased to dismiss the application filed for including one item of property to the suit schedule for the purpose of partition.
Facts in nutshell:
The appellant is the son of the first respondent. Respondents 2 and 3 are his sister and brother respectively. The appellant filed a Civil Suit in C.S. No. 469 of 2008 before the Original Side of this Court praying for passing a preliminary decree, to partition the plaint schedule property into four shares and to allot one such share to him. The Schedule to the plaint contains only one item of property, which is stated to be a residential house, where the parties are now residing.
2. The appellant in his plaint in C.S. No. 469 of 2008 contended that the schedule property was purchased by his father in the name of the first respondent out of his income and as such, the property is deemed to be a joint acquisition. It was the concrete case of the appellant that the first respondent had no independent source of income and as such, she was only a name lender for purchasing the schedule property. The father of the appellant constructed a residential house in the property. The appellant, respondents and their father lived in the said house. Subsequently, his father died and thereafter, differences of opinion arose between the appellant and the third respondent on the one side and respondents 1 and 2 on the other side. This resulted in filing the Civil Suit for partition.
3. The first respondent resisted the suit by filing a detailed written statement. The first respondent contended that the property was purchased out of her own funds and as such it cannot be treated as a joint family property. It was her further contention that the property was settled in the name of the second respondent vide document dated 28 June 2007. The first respondent has also filed a Civil Suit in C.S. No. 1079 of 2009 for the purpose of partitioning the other items of property left by her husband, who is none other than the father of the appellant.
4. The second respondent filed a separate written statement contending that the property was settled in her favour by her mother. It was her further contention that the appellant. Third respondent and their spouses created problems in the residential house which resulted in filing a Civil Suit in C.S. No. 847 of 2009 praying for a decree of recovery of possession and injunction.
5. The suits in C.S.Nos.469 of 2008 and 847 of 2009 were taken up together by way of joint trial. The appellant made an attempt to mark the Will executed by his father as a document on his side. The same was objected to by respondents 1 and 2 presumably on the ground that the Will was not probated. During the course of evidence, the appellant was made to believe that respondents 1 and 2 disputed the stipulations contained in the Will and as such, the property covered by the Will is also to be included as an item for partition.
6. The appellant originally filed an application to amend the plaint. The Registry appears to have returned the amendment application on the ground that the property which was sought to be included in the schedule is situated outside the jurisdiction of the High Court and as such leave should be taken. Thereafter, the appellant filed interlocutory application in A. No. 3953 of 2012 for the purpose of including the Ambattur Estate property as an additional item in suit schedule in C.S. No. 469 of 2008.
7. The first respondent in her counter-affidavit contended that she has already filed a Civil Suit in C.S. No. 1079 of 2009 for partitioning the available properties, which includes the Ambattur Estate property and the very same property is now sought to be included as an additional item for partition. The first respondent opposed the prayer for inclusion primaril
