9911796707
TMI Blog2012 (11) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... are now residing. 3. 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. 4. 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 responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x and it was only thereafter, to delay the matter, the appellant has approached the Court to include one more item to the suit schedule. The learned Judge without going into the merits of the contention as to whether the said property is also available for partition, dismissed the application solely on the ground of delay. Feeling aggrieved, the appellant is before us. Submissions: 10. The learned counsel for the appellant contended that originally, Ambattur Estate property was not included as an item of property available for partition on account of the Will executed by the father of the appellant. It was only during the course of recording evidence, respondents 1 and 2 contested the Will and claimed certain right in respect of Ambattur Estate property. This made the appellant to file an application for inclusion of Ambattur Estate property as an item available for partition. According to the learned counsel, inclusion of one additional item of property in the plaint schedule, would not change the character of the suit. Similarly, would not consume any additional time for disposal and as such, the learned Single Judge erred in rejecting the application. 11. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attur Estate property, the said property was not included in the schedule to the suit in C.S.No.469 of 2008. It is also a matter of record that the first respondent has subsequently filed a suit in C.S.No.1079 of 2009 seeking partition of Ambattur Estate property besides other reliefs, which includes payment of money and a prayer for injunction. 15. The second respondent after the receipt of summons in C.S.No.469 of 2008 filed a suit in C.S.No.847 of 2009 against the appellant, third respondent and their spouses praying for a decree of recovery of possession and injunction. Both the suits in O.S.No.469 of 2008 and 847 of 2009 were ordered to be taken up for joint trial. It is also a matter of record that the trial commenced and evidence were recorded. It was only at that point of time, the appellant has filed the interlocutory application for inclusion of Ambattur Estate property as an item available for partition among the parties. The delay in preferring the said application was explained by the appellant. According to the appellant though the first respondent is the executor of the Will dated 13 February 1986 and in possession of the original registered Will, she failed to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Even though Ambattur Estate property was available for partition, the appellant has not included the said item in the suit in C.S.No.469 of 2008. The Will executed by the father of the appellant contains certain stipulations with respect to partition. The appellant wanted the said Will to be marked as an exhibit on his side. The same was opposed by respondents 1 and 2 on the ground that it was not probated. It was only at that point of time, the appellant filed an application to amend the schedule and to include Ambattur Estate property as Schedule II to the plaint. The first respondent in her counter affidavit in A.No.3953 of 2012 conceded that the Ambattur Estate property is a joint family property and as such the parties are entitled to equal share. The precedent: 20. The Supreme Court in Revajeetu Builders v. Narayanaswamy and Sons, (2009) 10 SCC 84, underlined the factors to be taken into consideration while dealing with applications for amendments. 63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id item in the Civil Suit filed by the appellant in C.S.No.469 of 2008. In fact, it was only the appellant, who has filed the suit earlier for partition. The learned counsel for respondents 1 and 2 during the course of his arguments submitted that the mother and sister of the appellant have no objection for partitioning the Ambattur Estate property. In case, they have 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. The first respondent has no case that there was a joint trial ordered by the Court to try her suit in C.S.No.1079 of 2009 along with the other two suits filed by the appellant and the second respondent. 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. The suit was filed on 11 April 2008. The recording of evidence commenced on 9 February 2011. The appellant has filed the application during the time of recording evidence. As pointed out earlier, the appellant was pursuing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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