- 1 - HC-KAR NC: 2025:KHC:52991 WP No. 15212 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 15212 OF 2023 (GM-CPC) BETWEEN: 1. SRI HANUMANTHARAYAPPA AGED ABOUT 70 YEARS S/O LATE MAGADI RAMAIAH. 2. SRI KRISHNAMURTHY AGED ABOUT 61 YEARS S/O LATE MAGADI RAMAIAH. 3. SRI SRINIVASA AGED ABOUT 53 YEARS, S/O LATE MAGADI RAMAIAH. 4. SRI MURALIDHAR AGED ABOUT 50 YEARS S/O LATE MAGADI RAMAIAH. ALL ARE RESIDING AT WARD NO.8, KOTE BEEDHI DEVANAHALLI TOWN - 562 110. …PETITIONERS (BY SRI NARASIMHA PRASAD S.D, ADV.) AND: 1. SMT. SHANTHAMMA AGED ABOUT 65 YEARS D/O LATE MAGADI RAMAIAH W/O NADUKERAPPA R/AT WARD NO.23 AKKUPATE DEVANAHALLI TOWN BANGALORE RURAL DISTRICT - 526 110. Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:52991 WP No. 15212 of 2023 2. SMT. USHADEVI AGED ABOUT 45 YEARS W/O GOPI CHANDRU D/O LATE MAGADI RAMAIAH R/T ANJINEYA SWAMY TEMPLE ROAD, VADIGERAHALLI KENGERI, BANGALORE - 560 060. …RESPONDENTS (BY SRI MOHAMMED THOUHID, ADV., FOR R-1 & R-2 (VK FILED AND NOC OBTAINED IN R/O R-2) SRI PAWAN KUMAR S, ADV., FOR R-2) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED ORDER VIDE ANNX-E PASSED BY THE HONBLE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC DEVANAHALLI, IN OS.NO.703/2018 ON IA.NO.5 FILED U/O 6 RULE 17 OF CPC DTD 02.06.2023 AND CONSEQUENTLY ALLOW THE APPLICATION AS PRAYED FOR AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. Defendant Nos.2 to 5 are before this Court in this writ petition filed under Article 227 of the Constitution of India, with a prayer to set aside the order dated 02.06.2023 passed on IA No.5 in OS No.703/2018 by the Court of Prl. Senior Civil Judge & JMFC, Devanahalli. 2. Heard the learned Counsel for the parties. - 3 - HC-KAR NC: 2025:KHC:52991 WP No. 15212 of 2023 3. Respondent no.1 herein has filed O.S.No.703/2018 before the jurisdictional Civil Court at Devanahalli, seeking the relief of partition and separate possession of the suit schedule properties and also to declare that the Partition Deed dated 22.04.2010 is not binding on the share of the plaintiff. Defendant no.1 in the said suit is the mother of the plaintiff and defendant nos.2 to 6 are the brothers and sister of the plaintiff. 4. Defendant nos.1 to 5 had filed written statement opposing the suit claim. 5. IA.no.1 was filed by defendant nos.1 to 5 with a prayer to permit them to amend the written statement filed by them. The said application was opposed by the plaintiff by filing objections. The Trial Court vide the order impugned has rejected the said application. Being aggrieved by the same, defendant nos.2 to 5 who are the sons of defendant no.1 are before this Court. 6. Learned Counsel for the petitioners having reiterated the grounds urged in the petition, submits that it is the specific contention of defendant nos.1 to 5 in their written statement - 4 - HC-KAR NC: 2025:KHC:52991 WP No. 15212 of 2023 that the suit schedule property was the self-acquired properties of defendant no.1. During her life time, she has executed a registered Will in respect of the suit schedule properties on 09.06.2022 in favour of her sons viz., defendant nos.2 to 5. Application seeking amendment is filed only to bring the said factual aspect on record. The Trial Court was, therefore, not justified in rejecting the application. 7. Per contra, learned Counsel for the contesting respondent has opposed the petition. He submits that as on the date, the application was filed, defendant no.1 who allegedly had executed the Will in question was alive, and therefore, the Trial Court was completely justified in rejecting the application. 8. Plaintiff is the daughter of defendant no.1 and sister of defendant nos.2 to 6. In the plaint, it is alleged that defendant nos.1 to 5 have executed a partition deed between themselves keeping out the plaintiff and defendant no.6 who are the daughters of defendant no.1. It is under these circumstances, the suit was filed seeking the relief of partition and separate possession of the suit schedule properties and to declare that - 5 - HC-KAR NC: 2025:KHC:52991 WP No. 15212 of 2023 the partition deed dated 22.04.2010 is not binding on the share of the plaintiff. 9. In the said suit, defendant nos.1 to 5 have filed written statement opposing the suit claim. They have specifically contended that the suit schedule properties are the self- acquired properties of defendant no.1, and therefore, they are not available for partition. IA.no.5 has been filed seeking permission to amend the written statement filed on behalf of defendant nos.1 to 5. The proposed amendment reads as under: Add the following after para No.14. Para No.15. "Defendant No.1 submits that Item Nos.4, 12 and 13 of the suit schedule properties are her self acquired and separate properties as she had acquired the said properties out of her self earned money. As such the 1st defendant got every right to deal and dispose of the said properties. Being the absolute owner in separate possession of the Item Nos.4, 12 and 13 of the suit schedule properties, the defendant no.1 out of love and affection bequeathed said properties in favour her sons i.e., defendants 2 to 5 under a registered Will dated 09.06.2022. The defendant No.1 is hale and healthy and is in good state of mind. There is no coercion and undue influence in executing the above said registered Will". - 6 - HC-KAR NC: 2025:KHC:52991 WP No. 15212 of 2023 10. From the reading of the proposed amendment, it is clear that defendant nos.1 to 5 have sought to incorporate a paragraph regarding execution of registered Will dated 09.06.2022 by defendant no.1 in favour of her sons viz., defendant nos.2 to 5. It is submitted by the learned Counsel for the petitioners that the Trial Court has rejected the said application on the ground that the Will in question would come into operation only after the demise of the testator, and therefore, the existence of registered Will and its effect, if any, has no consequence on the suit for the reason that the execution of the said Will was during the pendency of the suit. He submits that defendant no.1 who is the testator has died on 29.12.2022 which is much prior to the order impugned. If that is so, then the proposed amendment is of some relevance considering the relationship between the parties and the rights which flow from the alleged Will. 11. The Hon'ble Supreme Court in the case of RAJKUMAR AGGARWAL & OTHERS VS K.K.MODI - (2006)4 SCC 385, has observed that the court should not go into the real dispute between the parties and should not go into the correctness or - 7 - HC-KAR NC: 2025:KHC:52991 WP No. 15212 of 2023 validity of the amendment nor will record a finding on the merits of the amendment at the stage of considering the prayer for amendment. 13. Under the circumstances, I am of the opinion that the Trial Court was not justified in dismissing the application. Accordingly, the following order: 14. Writ petition is allowed. The impugned order dated 02.06.2023 passed on IA no.5 in OS No.703/2018 by the Court of Prl. Senior Civil Judge & JMFC, Devanahalli, is set aside. The prayer made in IA.no.5 is granted. Sd/- (S VISHWAJITH SHETTY) JUDGE DN/KK