“Where the party acquires right by bar of limitation and if the same is sought to be taken away by amendment of the pleading, amendment in such circumstances would be refused.”

HIGH COURT OF ANDHRA PRADESH

TUESDAY ,THE FOURTH DAY OF APRIL

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

CIVIL REVISION PETITION NO: 2205 OF 2015

Between:

1. KALLAM MANGAMMA W/o Late Brahma Reddy

Indian Hindu, aged about 66 years,

House Wife and Properties,

R/o Bodapadu, Nunna Village,

Vijayawada Rural Mandal, Krishn District

...PETITIONER(S)

AND:

1. BONTHU LAKSHMI SARADA & 3 OTHERS D/o Bonthu Rami Reddy,

W/o M.Praveen Kumar Reddy,

Indian Hindu, aged about 38 years,

R/o St. Brides Court, Ingleby Barwick,

Stockton-on-Trees,

TS 17 5 HF, Cleveland, UK.

2. Bonthu Neeraj D/o Rami Reddy

W/o Srikanth Reddy Plawai

Indian Hindu, aged about 37 years,

R/o Road No. 5, Plot No. 22A, Flat No. 3, Sri Padmavathi Nilayam,

Jubilee Hills, Hyderabad.

3. Bonthu Prasanthi D/o Bonthu Rami Reddy, W/o T.Sruthi Sagar Reddy,

Indian Hindu, Aged about 32 years, R/o 10638 S.langley St. Olathe, KS

66061, USA,

(Respondents 1 to 3 Rep.by through

Their GPA Holder i.e. 2nd respondent)

4. Bonthu Rami Reddy S/o Madhusudhan Reddy, Indian, Hindu, aged 63

years, Business

And Properties, R/o D.No. 252, Prasanthi Nilayam P2, Road No.2,

Banjara Hills, Hyderabad.

...RESPONDENTS

Counsel for the Petitioner(s): YALLABANDI RAMATIRTHA

Counsel for the Respondents: D VENKATA RAMANA REDDY

The Court made the following: ORDER

2023:APHC:11626

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

CIVIL REVISION PETITION NO.2205 OF 2015

Between:

1. Kallam Mangamma (Died), W/o. Late Brahma Reddy,

Hindu, 66 years, Housewife & Properties,

R/o.Bodapadu, Nunna Village, Vijayawada Rural

Mandal, Krishna District. (Respondent No.1/

Defendant No.1)

2. Bhemavarapu Anuradha, W/o. B.Venkat Reddy,

D/o. Late Kallam Mangamma, Hindu, 48 years,

Housewife, R/o. H.No.1-36, Bodhan Mandal,

Atchampalli (Rural), Nizamabad, Telangana State503180.

(LR. of the deceased petitioner No.1 was brought on

record as per Order, dated 10.11.2020 vide CRPMP

No.6668 of 2015 in CRP No.2205 of 2015)

… Petitioners

 Versus

1. Bonthu Lakshmi Sarada, D/o. Bonthu Rami Reddy,

W/o.M.Praveen Kumar Reddy, Indian & Hindu, 38

years, R/o.St.Brides Court, Ingleby Barwick,

Stockton-on- Trees, TS 17 5 HF, Cleveland, UK.

2. Bonthu Neeraj, D/o. Rami Reddy, W/o. Srikanth

Reddy Plawai, Hindu, 37 years, R/o. Road No.5, Plot

No.22A, Flat No.3, Sri Padmavathi Nilayam, Jubilee

Hills, Hyderabad.

3. Bonthu Prasanthi, D/o. Bonthu Rami Reddy,

W/o.T.Sruthi Sagar Reddy, Indian Hindu, 32 years,

R/o. 10638 S.Langley St. Olathe, KS 66061, USA,

(Respondent Nos.1 to 3 represented through their GPA

Holder i.e., 2nd respondent) (Respondents/Plaintiffs)

4. Bonthu Rami Reddy, S/o. Madhusudhana Reddy,

Hindu, 63 years, Business & Properties,

R/o.D.No.252, Prasanthi Nilayam, P2, Road No.2,

Banjara Hills, Hyderabad. (Respondent No.2/

Defendant No.2)

... Respondents

* * * * *

2023:APHC:11626

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DATE OF ORDER PRONOUNCED : 04.04.2023.

SUBMITTED FOR APPROVAL:

 HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers

 may be allowed to see the Order? Yes/No

2. Whether the copy of Order may be

 marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

 fair copy of the Order? Yes/No

_____________________________

 B.V.L.N.CHAKRAVARTHI, J

2023:APHC:11626

Page 3 of 14

* HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ CIVIL REVISION PETITION NO.2205 OF 2015

% 04.04.2023

# Between:

1. Kallam Mangamma (Died), W/o. Late Brahma Reddy,

Hindu, 66 years, Housewife & Properties,

R/o.Bodapadu, Nunna Village, Vijayawada Rural

Mandal, Krishna District. (Respondent No.1/

Defendant No.1)

2. Bhemavarapu Anuradha, W/o. B.Venkat Reddy,

D/o. Late Kallam Mangamma, Hindu, 48 years,

Housewife, R/o. H.No.1-36, Bodhan Mandal,

Atchampalli (Rural), Nizamabad, Telangana State503180.

(LR. of the deceased petitioner No.1 was brought on

record as per Order, dated 10.11.2020 vide CRPMP

No.6668 of 2015 in CRP No.2205 of 2015)

… Petitioners

 Versus

1. Bonthu Lakshmi Sarada, D/o. Bonthu Rami Reddy,

W/o.M.Praveen Kumar Reddy, Indian & Hindu, 38

years, R/o.St.Brides Court, Ingleby Barwick,

Stockton-on- Trees, TS 17 5 HF, Cleveland, UK.

2. Bonthu Neeraj, D/o. Rami Reddy, W/o. Srikanth

Reddy Plawai, Hindu, 37 years, R/o. Road No.5, Plot

No.22A, Flat No.3, Sri Padmavathi Nilayam, Jubilee

Hills, Hyderabad.

3. Bonthu Prasanthi, D/o. Bonthu Rami Reddy,

W/o.T.Sruthi Sagar Reddy, Indian Hindu, 32 years,

R/o. 10638 S.Langley St. Olathe, KS 66061, USA,

(Respondent Nos.1 to 3 represented through their GPA

Holder i.e., 2nd respondent) (Respondents/Plaintiffs)

4. Bonthu Rami Reddy, S/o. Madhusudhana Reddy,

Hindu, 63 years, Business & Properties,

R/o.D.No.252, Prasanthi Nilayam, P2, Road No.2,

Banjara Hills, Hyderabad. (Respondent No.2/

Defendant No.2)

... Respondents

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! Counsel for the Revision

 -petitioners : Sri Yallabandi Ramatirtha

^ Counsel for the

 Respondent Nos.1 to 3/ : Sri M.Chalapati Rao

 Respondents/Plaintiffs

^ Counsel for the

 Respondent No.4/D.2 : Sri D.Venkata Ramana Reddy

< Gist:

> Head Note:

? Cases referred:

1. AIR 1996 Supreme Court 2358.

2. (2004) 6 SCC 415.

This Court made the following:

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THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTI

CIVIL REVISION PETITION NO.2205 of 2015

O R D E R:

Heard Sri Yallabandi Ramatirtha, learned counsel for

revision-petitioner and Sri M.Chalapati Rao, learned counsel for

respondent Nos.1 to 3.

2. The contention of the revision-petitioner is that the

property under dispute was bequeathed to her by her father late

Madhusudhana Reddy and the Gift Deeds executed in the year

1981 prior to the partition between Madhusudhana Reddy and

his son i.e., defendant No.2 in the suit. Therefore, the revisionpetitioner acquires right by bar of limitation and the same is

sought to be taken away by amending of the pleading, it would

cause prejudice to the right of the revision-petitioner and such an

amendment would defeat the accrued right in favour of the

revision-petitioner.

3. The contention of the respondents/plaintiffs is that they

filed the suit for Declaration that plaint ‘A’ and ‘B’ schedule

properties are ancestral properties of their grandfather

Madhusudhana Reddy and their father i.e., defendant No.2 in the

suit and therefore, their paternal grandfather cannot alienate the

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ancestral property affecting the rights of other coparcener and

hence, they filed the suit for Declaration that plaint schedule

properties are ancestral properties and for partition of the

properties. The further contention of the respondents is that, the

revision-petitioner, who is defendant No.1 in the suit, filed

written statement contending that Madhusudhana Reddy

bequeathed the plaint schedule properties in favour of the

defendant No.1 i.e., his daughter under Gift Deeds executed in

the year 198; therefore, the plaintiffs were advised to amend the

plaint seeking relief of ‘Declaration’ that the alleged Gift Deeds

executed by Madhusudhana Reddy are not binding on the

plaintiffs to the extent of his share.

4. The learned Trial Judge ‘Allowed’ the application filed by

the plaintiffs for amendment of the plaint. Assailing the said

Order, the defendant No.1/revision-petitioner filed the present

revision.

5. In the light of above rival contentions, the point that would

arise in the revision-petition is as under: -

“Whether the Trial Court committed any

irregularity in the Order, dated 13.03.2015 passed

in I.A.No.491 of 2014 in O.S.No.344 of 2012?”

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6. P O I N T: -

The learned counsel for the revision-petitioner would

submit that the revision-petitioner/defendant No.1, who is the

daughter of Madhusudhana Reddy and sister of father of the

plaintiffs in the suit, acquires right over the plaint schedule

properties by bar of Limitation in view of the Gift Deeds executed

in her favour in the year 1981 by late Madhusudhana Reddy

before the partition between Madhusudhana Reddy and father of

the plaintiffs in the suit i.e., Defendant No.2; and in the said

circumstances, the plaintiffs attempt to take away their right by

way of amendment of the pleading would defeat her right; hence,

the Trial Court committed material irregularity by permitting the

respondents No.1 to 3/plaintiff Nos.1 to 3 to amend the plaint

seeking the relief to declare that the Gift Deed executed by late

Madhusudhana Reddy in the year 1981, is not binding on the

plaintiffs to the extent of their share in the property.

7. The learned counsel for the respondent Nos.1 to 3/

plaintiffs would submit that the contention of the plaintiffs is that

the disputed property i.e., plaint ‘A’ and ‘B’ schedule properties

are ancestral properties of late Madhusudhana Reddy and his

son (defendant No.2) and therefore, they are coparceners and

Madhusudhana Reddy cannot execute Gift Deeds in favour of his

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daughter (Defendant No.1/revision-petitioner) and it is not

binding on the plaintiffs as they are daughters of defendant No.2

and they can question the Gift Deeds executed by their paternal

grandfather Madhusudhana Reddy; they came to know about the

said Gift Deeds when defendant No.1 filed the written statement

in the suit; and hence, the contention of revision-petitioner that

she acquired right by bar of limitation is not tenable and further,

the issue of limitation raised by revision-petitioner/defendant

No.1 in the above circumstance, is a mixed question of fact and

law, and it can be decided only after recording evidence in the

trial; hence, the Trial Court did not commit any error while

allowing the application filed for amendment.

8. It is an admitted fact that the respondents/plaintiffs filed

the suit initially for ‘Declaration’ and ‘Partition’ contending that

the plaint ‘A’ and ‘B’ schedule properties are ancestral properties

of their father (defendant no.2) and grandfather Madhusudhana

Reddy and there was a partition between defendant No.2 and his

father in the year 1982 and later, Madhusudhana Reddy

executed a Will in the year 1990 bequeathing the properties, fell

to his share in favour of his wife Seshamma with life interest and

vested reminder to the plaintiffs and his son and as such, the

plaintiffs have a share in the plaint schedule property.

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9. The revision-petitioner/defendant No.2 filed written

statement contending that the plaint ‘A’ and ‘B’ schedule

properties were bequeathed to her by her father late

Madhusudhana Reddy and three (03) Gift Deeds were executed in

the year 1981 and therefore, she acquires right in the said

properties, and the suit is not maintainable.

10. The respondents/plaintiffs on perusing the plea taken in

the written statement filed by revision-petitioner/defendant No.1,

filed an application under Order VI Rule 17 of the Code of Civil

Procedure, 1908 for amendment of plaint seeking relief to declare

that the documents stand in the name of defendant No.1 as null

and void to the extent of 1/4th share of the plaintiffs, out of the

item Nos.1 and 2 of plaint ‘A’ schedule property and out of total

extent of Ac.2.00 cents in plaint ‘B’ schedule property.

11. The revision-petitioner/defendant No.1 filed counter before

the Trial Court opposing the application, contending that the

claim of the petitioners is barred by limitation and the defendant

No.2 i.e., father of the plaintiffs never raised objection about their

alienation made by Madhusudhana Reddy in favour of the

daughter in the year 1981 prior to the date of partition and

therefore, the proposed amendment would defeat their right

acquired by limitation.

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12. The Trial Court under Impugned Order, dated 13.03.2015,

‘Allowed’ the application observing that the contentions raised by

both parties would be decided at the trial and the amendment is

necessary for arriving a correct decision in the case.

13. The Honourable Supreme Court in Radhika Devi vs.

Bajrangi Singh and others1 relied on by the learned counsel for

the revision-petitioners, held as para-No.6 as under:

“Where the party acquires right by bar of limitation

and if the same is sought to be taken away by

amendment of the pleading, amendment in such

circumstances would be refused.”

14. In the present case, the contention of the revisionpetitioner is that the disputed properties are self-acquired

property of her father, and he executed the Gift Deeds in the year

1981. The contention of the respondents/plaintiffs is that the

disputed properties are ancestral properties of their grandfather

Madhusudhana Reddy, who is father of the revision-petitioner

and defendant No.2, who is father of the plaintiffs and therefore,

late Madhusudhana Reddy and defendant No.2 are coparceners

to the property and as such, any alienation made by

Madhusudhana Reddy against the interest of other coparceners

1 AIR 1996 Supreme Court 2358.

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are not valid and binding on defendant No.2 and the plaintiffs,

being the son and daughters, acquire right over the property by

birth as coparceners and they came to know about the alleged

Gift Deeds when defendant No.1 filed the written statement and

as such, they were advised to file amendment petition to declare

that those Gift Deeds are not binding on them to the extent of

their share in the property.

15. Therefore, as per the contention of the revision-petitioner/

defendant No.1 that it is a self-acquired property of

Madhusudhana Reddy; whereas the contention of respondents/

plaintiffs is that it is an ancestral property of late Madhusudhana

Reddy and defendant No.2. Hence, the question of limitation

would depend upon in the nature of the property i.e., whether it

is coparcener property or self-acquired property of late

Madhusudhana Reddy.

16. In Pankaja & another vs. Yellappa (dead) by LRs and

others2, the Honourable Apex Court held that it was in the

discretion of the court to allow an application under Order VI

Rule 17 of the CPC seeking amendment of the plaint even where

the relief sought to be added by amendment was allegedly barred

2 (2004) 6 SCC 415.

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by limitation. It was pointed out that the court's discretion in this

regard depends on the facts and circumstances of the case and

must be exercised on a judicial evaluation thereof. The principles

were laid down by the Honourable Supreme Court is as under:

“12. So far as the court's jurisdiction to allow an

amendment of pleadings is concerned, there can be no two

opinions that the same is wide enough to permit

amendments even in cases where there has been

substantial delay in filing such amendment applications.

This Court in numerous cases has held that the dominant

purpose of allowing the amendment is to minimise the

litigation, therefore, if the facts of the case so permit, it is

always open to the court to allow applications in spite of the

delay and laches in moving such amendment application.

13. But the question for our consideration is whether in

cases where the delay has extinguished the right of the

party by virtue of expiry of the period of limitation

prescribed in law, can the court in the exercise of its

discretion take away the right accrued to another party by

allowing such belated amendments.

14. The law in this regard is also quite clear and

consistent that there is no absolute rule that in every case

where a relief is barred because of limitation an amendment

should not be allowed. Discretion in such cases depends on

the facts and circumstances of the case. The jurisdiction to

allow or not allow an amendment being discretionary, the

same will have to be exercised on a judicious evaluation of

the facts and circumstances in which the amendment is

sought. If the granting of an amendment really subserves

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the ultimate cause of justice and avoids further litigation the

same should be allowed. There can be no straitjacket

formula for allowing or disallowing an amendment of

pleadings. Each case depends on the factual background of

that case.”

17. In the case on hand, the nature of property cannot be

decided at this stage of amendment. It can be decided only after

recording evidence during trial. Admittedly, the suit was initially

filed by respondents/ plaintiffs seeking the relief of a ‘Declaration’

also that plaint schedule properties are ancestral properties of

the plaintiffs and defendants, apart from the relief of partition.

18. The proposed amendment is only for a ‘Declaration’ that

the Gift Deeds claimed by the revision-petitioners are not binding

on the plaintiffs to the extent of the share of plaintiffs. In that

view of the matter, this Court is of the considered opinion that

the question whether the revision-petitioners perfected their right

over the schedule property in dispute would depend upon the

nature of the property. Further, no prejudice would be caused to

the revision-petitioners, if the amendment is allowed since, initial

prayer of the suit was also to declare that the suit properties are

ancestral properties of the plaintiffs and defendants.

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19. In view of the above rival contentions and nature of the

dispute regarding the plaint schedule properties, the question of

limitation would depend upon the evidence adduced in the trial.

In such circumstances, the decision relied by the revisionpetitioners will not help their case.

20. In that view of the matter, there are no grounds to interfere

with the impugned Order of the Trial Court, as the Trial Court

rightly observed that the contentions raised by both parties

would be decided in the trial of the suit. Therefore, the revisionpetition is liable to be dismissed.

21. In the result, the Civil Revision Petition is ‘Dismissed’.

There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

B.V.L.N.CHAKRAVARTHI, J

4th April, 2023.

DNB

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