(1.) The plaintiff in O.S.No.7 of 2005 in the Court of I Additional Chief Judge, City Civil Court, Secimderabad, filed this Civil Revision Petition, feeling aggrieved by the order, dated 04.08.2006, passed by the trial Court in I.A.No.130 of 2006, permitting amendment to the written statement, filed by the first respondent herein. Petitioner and respondents 2 to 7 are the children of the first respondent and late P.Veeresham. During his life time, Veeresham was allotted a house plot at Prakash Nagar in his capacity, as an employee of Indian Air Lines. He died in February 1987, while in service. The petitioner filed the suit for partition of house bearing No. 1-8-450/B-46, Indian Airlines Employees Housing Colony, Secimderabad. The suit was initially filed against the mother and brothers of the petitioner, respondents 1 to 3 herein. Subsequently, his sisters, respondents 4 to 7 were impleaded. He pleaded that the suit schedule property was acquired by his father and his Class-I heirs are entitled to equal shares. It was alleged that the first respondent was trying to alienate it. The petitioner has also filed I.A. No.285 of 2005 under Order 39 Rules 1 and 2 C.P.C. for temporary injunction. The first respondent filed written statement in the suit, and counter affidavit in the I.A. She admitted that the property was also executed in her favour. With these and other related submissions, she wanted to amend the written statement, which is to result in withdrawal of certain admissions and proposals, and substitution of new pleas in their place.
(2.) The petitioner filed a counter affidavit opposing the I.A. He stated that the first respondent categorically admitted that the suit schedule property was acquired by late Veeresham and it is not permissible for the first respondent to resile from that stand. Through the order under revision, the trial Court allowed the I.A. Sri Mohd. Imran Khan, the learned counsel for the petitioner submits that the first respondent has not only categorically admitted that the property was acquired by her [husband, but also stated that it was her husband's wish that the property must be divided equally among the children and their mother, and the present application is filed only with a view to deprive the petitioner, of his legitimate share in the property. Learned counsel submits that though it is permissible for a defendant in a suit, to take contradictory stands, an admission once made in a written statement, cannot be permitted to be withdrawn. He made extensive reference, to the table, which depicted the impact of the amendment, permitted by the trial Court. Sri P.V.Sanjay Kumar, the learned counsel for the respondents, on the other hand, submits that the written statement and the counter acquired by her husband and that it is liable to be divided into eight equal shares. According to her, the petitioner was entitled to 1/8th share and not 1/3rd as pleaded by him. She also referred to the last wish of her husband that the sale proceeds of the property must be divided among the members of the family, comprising of herself, and children. She made a reference to an agreement of sale, in respect of the said property, entered into in February 2005 and alleged that a sum of Rs.6,00,000/- was received as advance. She expressed her readiness to pay 1/8th of the consideration of the building, being Rs.5,80,450/-, to the petitioner and in fact, enclosed a bankers cheque for that amount, along with the written statement and counter affidavit.
(3.) Respondents 1 to 3 herein filed I.A.No.130 of 2006 under Order 6 Rule 17 C.P.C., with a prayer to permit them to amend the written statement filed by the first respondent. In the affidavit filed by the first respondent, in support of the LA., it was stated that on account of her old age and disturbances in the family, she could not verify the facts properly and believing the documents supplied by the petitioner as true, she proceeded on the assumption that the plot was allotted to her husband. She contended that on verification of the record, it emerged that the initial allotment of the plot, made in favour of her husband was cancelled and thereafter, independent allotcgzment was made to her, after the death of her husband, and that the sale deed was affidavit were filed, believing the documents furnished by the petitioner as true and that being an old woman of 75 years, the first respondent could not verify the facts properly, particularly in view of the fact that the I.A. for temporary injunction was coming up for hearing. Learned counsel submits that the question as to whether a particular item of property belongs to the coparcenery, or belongs exclusively, to one of the members, must be decided through verification of necessary facts; and admission or denial by any party would not be of much consequence. He submits that the amendment does not affect the rights of the petitioner and he can certainly prove his contention, during the course of trial.