SMT. A.S. ARUNA Vs. B. MARIYAPPA

JUDGEMENT

(1.) The plaintiffs/petitioners filed this writ petition against the order dated 14-9-2016 passed on I.A. No. 33 in O.S. No. 1812 of 2005 vide Annexure-A dismissing the application filed by her under Order 6, Rule 17 of Code of Civil Procedure, 1908 ('CPC' for short) for amendment of the pleadings.

(2.) The plaintiffs filed the suit for partition and separate possession in respect of the suit schedule property contending that the suit schedule property is a joint family property of the plaintiffs and the defendants. The defendants denied the entire plaint averments and contended that the suit schedule property is a self acquired property of the defendants and sought for dismissal of the suit.

(3.) When the suit was posted for evidence of the defendants, at that stage, the plaintiffs filed I.A. No. 33 under Order 6, Rule 17 of Civil Procedure Code for amendment of the plaint to incorporate few paragraphs after paragraph 10(b) in the plaint stating that subsequent to filing of the suit after leading the plaintiffs' evidence during the course of the defendants' evidence, the plaintiffs learnt about the registered Will dated 24-11-2004 executed by the deceased defendant 1 in favour of plaintiffs 2 to 4 in respect of portion of Sy. No. 20/1 of Kamarasanahalli Village. Subsequently, the plaintiffs applied for the said document and confronted to the witness-D.W. 2 during the course of the cross-examination of D.W. 2 and therefore the plaintiffs filed the present application seeking for declaration in respect of item No. 2 of the schedule property. Subsequent to filing of the present suit, he came to know that another Will dated 16-12-2005 said to have been executed by the 1st defendant in favour of defendant 4. Therefore he sought to incorporate the above facts and also to amend the prayer column and to declare that plaintiffs 2 to 4 are the absolute owners of item No. 2 of the suit schedule property as per the registered Will dated 24-11-2004 and also to declare that the alleged Will dated 16-12-2005 which has taken place in respect of item No. 2 of the schedule property is not binding on the plaintiffs and same is null and void.