- 1 - NC: 2025:KHC:7313 WP No. 5746 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 5746 OF 2021 (GM-CPC) BETWEEN: SRI. BASAVARAJU S/O SIDDALINGAIAH, AGED ABOUT 53 YEARS, AGRICULTURIST, R/O KORA VILLAGE KORA HOBLI TUMAKURU TALUK. …PETITIONER (BY SRI. NARASIMHARAJU, ADVOCATE) AND: 1. SMT. PREMALATHA W/O SIDDARAMAIAH, D/O SIDDALINGAIAH, AGED ABOUT 39 YEARS, R/O GODEKERE VILLAGE SHETTIKERE HOBLI, C.N. HALLI TALUK, TUMAKURU TALUK AND DISTRICT - 572 101 2. SRI. RATHEESH KUMAR S/O SIDDALINGAIAH, AGED ABOUT 51 YEARS, R/O KORA VILLAGE, KORA HOBLI TUMAKURU TALUK - 572 101 3. THE SPECIAL LAND ACQUISITION OFFICER KIADB, BESIDE S.I.T. BACK GATE TUMAKURU - 572 101 …RESPONDENTS (BY SRI. P.H.VIRUPAKSHAIAH AND YOGESH V. KOTEMATH, ADVOCATES FOR RESPONDENT NO.1; Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT KARNATAKA - 2 - NC: 2025:KHC:7313 WP No. 5746 of 2021 VIDE ORDER DATED 24.03.2021, NOTICE TO RESPONDENT NOS.2 AND 3 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE ORDER DATED 05.03.2021 PASSED BY THE 2ND ADDL. SENIOR CIVIL JUDGE AND JMFC AT TUMAKURU ON IA NO.8 FILED BY THE PETITIONER UNDER ORDER VI RULE 17 OF CPC IN OS NO.347/2018 VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONER. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ ORAL ORDER The defendant No.1 in O.S.No.347/2018 pending on the file of the II Additional Senior Civil Judge and JMFC, Tumakuru (henceforth referred to as 'Trial Court') has filed this petition challenging an order dated 05.03.2021 by which, the Trial Court rejected an application (I.A.No.VIII) filed by him under Order VI Rule 17 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC'). 2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner herein was the defendant No.1, while the respondent No.1 was the - 3 - NC: 2025:KHC:7313 WP No. 5746 of 2021 plaintiff. Respondent Nos.2 and 3 were defendant Nos.2 and 3 before the Trial Court. 3. A suit in O.S.No.347/2018 was filed for partition and separate possession of the plaintiff's share in the suit properties. The plaintiff claimed that she and defendant Nos.1 and 2 were in joint possession of the suit properties which were their ancestral properties. She claimed that defendant No.1 being the head of the family, was managing the suit properties. She claimed that she demanded the defendant Nos.1 and 2 to partition and handover her share in the suit properties but they were trying to defraud her of her legitimate share. The plaintiff claimed that defendant No.3 had acquired the suit properties for the purpose of developing an industrial area and therefore, she filed a suit for partition of her share in the suit properties. 4. The defendant No.1 contested the suit and denied that he was the kartha of the family and denied that he was managing the suit properties. He denied that there was a joint family as claimed by the plaintiff. He also denied that the plaintiff had demanded for allotment of her share and also denied that the suit properties were acquired for industrial use. - 4 - NC: 2025:KHC:7313 WP No. 5746 of 2021 5. Later when the suit was listed for evidence, the defendant No.1 filed an application (I.A.No.VIII) under Order VI Rule 17 of CPC to amend the written statement to contend that the plaintiff had deliberately not included certain other movable properties, which belonged to the family. 6. This application was contested by the plaintiff, who claimed that many of the gold ornaments mentioned in the application did not exist, while tractor and trailer was in the custody of defendant No.1 and a sum of Rs.7,85,000/- lying in fixed deposit in the name of the mother of the plaintiff was used for her medical needs and necessities. 7. The Trial Court in terms of the impugned order, rejected the application on the ground that the defendant No.1 did not furnish any documents to show that the movable properties belonged to the joint family and that they were in existence and were in possession of the plaintiff. It also held that a sum of Rs.7,85,000/- kept in fixed deposit in the name of the mother of the plaintiff was utilized for her medical expenses. The Trial Court noticed that the plaintiff had produced medical records to show that her mother was - 5 - NC: 2025:KHC:7313 WP No. 5746 of 2021 suffering from kidney ailments and she was treated at Tumakuru. 8. Being aggrieved by the said order, the defendant No.1 is before this Court. 9. The learned counsel for defendant No.1 submitted that the plaintiff is in possession of the gold ornaments and she is also in possession of a sum of Rs.7,85,000/-, which was the money kept in fixed deposit in the name of the mother of the plaintiff and defendant No.1. He submits that this amount was also liable to be partitioned and since the same was not included, the defendant No.1 is entitled to non suit the plaintiff for not including all the properties of the family. 10. Per contra, learned counsel for the plaintiff contends that no material was produced to show the existence of the gold ornaments. He contends that the defendant No.1 is in custody of the tractor and trailer. He also contends that a sum of Rs.7,85,000/- that was kept in fixed deposit in the name of the mother of the plaintiff was used for her medical needs and necessities and therefore, none of these properties exist as on the date the suit for partition was filed. - 6 - NC: 2025:KHC:7313 WP No. 5746 of 2021 11. I have considered the submissions of the learned counsel for the defendant No.1 as well as the learned counsel for the plaintiff. 12. In a suit for partition, the parties are entitled for partition of not only the immovable properties but also movable properties. The defendant No.1 contends that the family owned a tractor and trailer and therefore, the same is also liable to be partitioned. He also claimed that there were certain valuable jewelry that are lying with the plaintiff. Therefore, it is for the defendant No.1 to prove the existence of the jewelry and that it is in the custody of plaintiff. Likewise, it is for the plaintiff to establish that a sum of Rs.7,85,000/- kept in fixed deposit was used for medical needs and necessities of her mother. The Trial Court could not have gone into the merits of the application and therefore, should not have rejected the application filed by the defendant No1. to amend the written statement to incorporate movable properties. 13. In that view of the matter, the following ORDER (i) The writ petition is allowed. - 7 - NC: 2025:KHC:7313 WP No. 5746 of 2021 (ii) The impugned order dated 05.03.2021 passed by the II Additional Senior Civil Judge and JMFC, Tumakuru on I.A.No.VIII filed by defendant No.1 under Order VI Rule 17 of CPC in O.S.No.347/2018 is set aside. (iii) I.A.No.VIII filed by defendant No.1 under Order VI Rule 17 of CPC in O.S.No.347/2018 is allowed. The defendant No.1 is permitted to amend the written statement. (iv) It is open for the plaintiff to file a reply to the amended written statement. (v) It is made clear that the defendant No.1 is bound to prove the existence of the jewelry mentioned in the amended written statement and it is for the plaintiff to establish that the money kept in fixed deposit of her mother was withdrawn and used up for the medical needs and necessities of her mother. Sd/- (R. NATARAJ) JUDGE PMR List No.: 1 Sl No.: 59