Properties bought after family separation not part of partition suit: HC

The High Court has held that the properties bought subsequent to the separation of the family cannot be included in the partition suit filed subsequently

Properties bought after family separation cannot be included in a partition suit filed subsequently, that too by way of an amendment, the high court has ruled.

Nor can an amendment for including properties bought after the partition be allowed without an averment made in the plaint regarding a reunion between family members. The high court gave this ruling while setting aside a Bengaluru civil court's order relating to a partition suit.

The plaintiffs — petitioners before the civil court — had filed an Original Suit (OS) seeking partition and separate possession. They subsequently filed an amendment application to include 13 more properties. The trial court's order allowing this application was challenged in the high court.

The high court considered certain admitted facts that there was a partition in 1965, a release deed in 1973 and a partition deed in 2002. The grievance was that while the self-acquired properties of one plaintiff were included, the self-acquired properties of the other side were not made a part of the partition deed.

"Once a plaintiff were to contend that he has separated from the family, the properties bought subsequent to the said separation cannot be included in the said plaint for partition filed subsequently, that too by way of an amendment," Justice Suraj Govindaraj ruled.

The court further held that a mere perfunctory statement would not classify a property to be joint family property. There has to be a specific averment as to how the properties have been purchased, how the funds were procured and how the properties constitute joint family properties, it added.

An application for amendment cannot be allowed on the bland averment made by the plaintiff that they can be determined after trial. "An amendment which ex facie is contrary to the admissions made in the plaint cannot be allowed. This court cannot be a mute spectator to any abuse of the process of court resorted to by any party to the litigation," the court said.

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