- 1 - NC: 2025:KHC:3906 WP No. 1985 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 1985 OF 2025 (GM-CPC) BETWEEN: SRI M A SREENIVASAN AGED ABOUT 60 YEARS S/O LATE M A PARTHA SARATHY RESIDING AT HAMSINI NO.1 12TH CROSS, R.M.V. EXTENSION SADASHIVANAGAR, BANGALORE - 560080 …PETITIONER (BY SRI. ARUN B M.,ADVOCATE) AND: SMT. MIMI PARTHASARATHY AGED ABOUT 57 YEARS D/O LATE M A PARTHA SARATHY RESIDING AT SREENIVASAM NO.20, 9TH CROSS, MALLESHWARAM BANGALORE - 560003. …RESPONDENT (BY SRI.DHYAN CHINNAPA., SENIOR COUNSEL FOR SMT. SANJANA RAO, ADVOCATE FOR C/RESPONDENT) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED: 01.07.2024 PASSED BY THE XLIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (C.C.C.H NO. 45) THEREBY DISMISSING I.A.NO. 32 FILED BY THE PETITIONER UNDER ORDER 6 RULE 17 OF CPC IN O.S.NO. 3294/2002 AT ANNEXURE-A AND CONSEQUENTIALLY ALLOW THE APPLICATION AND ETC. Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3906 WP No. 1985 of 2025 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD ORAL ORDER Though the matter is listed for orders, with the consent of the parties, the same is taken up for final disposal. 2. This writ petition is filed by the plaintiff under Article 227 of the Constitution of India, challenging the order dated 01.07.2024, passed by XLIV Additional City Civil and Sessions Judge, Bengaluru (CCH-45), whereby the application (IA No.32) filed by the plaintiff under Order VI Rule 17 r/w. Section 151 of CPC is dismissed. 3. The plaintiff filed a suit for partition and separate possession. After service of summons, defendants appeared through counsel and filed written statement. On the basis of the pleadings of the parties, the trial court framed the issues. The matter has been posted for evidence. During that time, plaintiff filed IA No.32 under - 3 - NC: 2025:KHC:3906 WP No. 1985 of 2025 Order VI Rule 17 of CPC for amendment of the plaint on the ground that the plaintiff’s mother has executed a gift deed dated 15.12.2004 with coercion and force. 3. The main contention of the plaintiff is that the gift deed has been executed by plaintiff’s mother with coercion and force. Therefore, the plaintiff wants to produce materials to prove his contention. The trial court, without considering this aspect of the matter erred in rejecting the application. He has also relied on the judgment of this Court in R.S.A.No.2190/2016 and contended that even though the petitioner/plaintiff has not sought for declaration that gift deed dated 15.12.2004 is not binding on the plaintiff, in the suit for partition, he can seek for partition in respect of joint family property. 4. Per contra, learned Senior Counsel for the respondent/defendant contended that in the very same suit, on an earlier occasion, the petitioner/plaintiff filed IA No.XIX under Order VI Rule 17 of CPC challenging the gift deed dated 15.12.2004. The same has been dismissed on - 4 - NC: 2025:KHC:3906 WP No. 1985 of 2025 07.08.2015 on the ground that in a suit for partition it is not necessary to seek for declaration of the gift deed, if it is a joint family property. He further contended that the trial court, after considering all these aspects has rightly rejected the application. 5. Heard learned counsel for the parties and perused the writ papers. 6. It is not in dispute that the plaintiff filed a suit for partition. During the pendency of the suit, he filed IA No.XIX under Order VI Rule 17 of CPC for amendment of the plaint by incorporating the prayer by challenging gift deed dated 15.12.2004. The trial court, by order dated 07.08.2015 dismissed the application. Since the plaintiff filed a suit for partition on the ground that the suit schedule property is a joint family property, if that would be the case, any joint family member transfer the properties by sale or gift deed without consent of the other family members. Without challenging the alienation or gift deed he cannot maintain a suit for partition. This Court in - 5 - NC: 2025:KHC:3906 WP No. 1985 of 2025 RSA No.2190/2016 disposed of on 11.01.2024, after considering the Division Bench judgment in the case of GANAPATI SANTARAM BHOSALE vs. RAMACHANDRA SUBBARAO KULKARNI (RFA No.87/1975 disposed of on 12.02.1985) held as follows: “17. In the light of discussion made supra, the finding of the appellate Court that plaintiffs could not have maintained a suit for partition without seeking cancellation of sale deed suffers from perversity, serious infirmity and is patently erroneous. The findings recorded by the appellate Court on point No.1 is found to be in contravention with the dictum laid down by the Division Bench in the case of GANAPATI BHONSALE (supra).” 7. In view of the above, the trial court has rightly held that what is intended to be incorporated by the plaintiff is telephonic conversation which is said to have stored in a pen drive, typed transcription and alleged oral conversion has nothing to do with the suit of this nature. Without that, he can seek for a partition. There is no error or illegality in the order passed by the trial court. - 6 - NC: 2025:KHC:3906 WP No. 1985 of 2025 8. Accordingly, writ petition is dismissed. Sd/- (H.T. NARENDRA PRASAD) JUDGE CM List No.: 1 Sl No.: 54