Karnataka High CourtCivil Procedure and EvidenceCivil Law

Karnataka HC Lets Brother Become Co-Plaintiff In Partition Suit To Contest Another Brother’s Will And Release-Deed Counterclaim

SRI RAJAPPAv.SRI SREEDHARA K M

Karnataka HC Lets Brother Become Co-Plaintiff In Partition Suit To Contest Another Brother’s Will And Release-Deed Counterclaim. SRI RAJAPPA vs SRI SREEDHARA K M. Karnataka High Court. LawLens
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In brief

The question

1. Whether a defendant in a pending partition suit may be transposed as a plaintiff when the original plaintiff has not sought to withdraw or abandon the suit

The court held

The Court allowed the writ petition, set aside the Trial Court’s order rejecting I.A. No. 11, and allowed the application to transpose the petitioner as plaintiff No. 2.

It also directed

It directed the Trial Court to endeavour to dispose of the suit expeditiously and left all contentions on the merits of the suit and counterclaim open

01Facts

Respondent No. 1 brought a partition suit. The petitioner, defendant No. 3, filed a written statement claiming a share; defendant No. 2 filed a written statement and counterclaim seeking declaratory relief based on a Will and release deed

¶ 2, 6

The petitioner alleged that the plaintiff was colluding with defendant No. 2 and was not effectively contesting the counterclaim. He applied under Order I Rule 10(6) CPC to be transposed as plaintiff No. 2; the plaintiff did not object

¶ 3–3.1, 6, 9

The Trial Court rejected the application because the plaintiff had not sought to withdraw or abandon the suit. The petitioner challenged that decision under Article 227 of the Constitution

¶ 2.1, 8

02Issues

i.1. Whether a defendant in a pending partition suit may be transposed as a plaintiff when the original plaintiff has not sought to withdraw or abandon the suit

¶ 2.1, 7–8

ii.2. Whether the petitioner’s circumstances warranted transposition to enable him to contest defendant No. 2’s counterclaim

¶ 6, 9–10

03Law Applied

The Court applied Order I Rule 10(6) CPC and the principle stated in Azgar Barid v. Mazambi, (2022) 5 SCC 334, that in a partition suit the positions of plaintiffs and defendants may be interchangeable because each party asserts rights in relation to the others.

¶ 7

While the suit remains pending, transposition may be sought according to the facts and circumstances; it is not restricted to cases where the plaintiff seeks to withdraw or abandon the suit

¶ 7

The Court also considered whether the proposed transposition would prejudice the other parties’ rights

¶ 8, 10

04Reasoning

The petitioner claimed a share and sought to contest the counterclaim, alleging that the plaintiff was not effectively doing so. Given the nature of a partition suit and the plaintiff’s lack of objection, the Court held that transposition would allow the petitioner to participate effectively in adjudication.

¶ 6–10

The Trial Court’s reliance on the absence of an intention to withdraw or abandon the suit overlooked the applicable principle in Azgar Barid. Transposition would not itself prejudice the other parties, whose rights and contentions remained open for determination

¶ 6–10

05Holding

The Court allowed the writ petition, set aside the Trial Court’s order rejecting I.A. No. 11, and allowed the application to transpose the petitioner as plaintiff No. 2.

¶ 12

It directed the Trial Court to endeavour to dispose of the suit expeditiously and left all contentions on the merits of the suit and counterclaim open

¶ 12
Karnataka High Court

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SRI RAJAPPAvsSRI SREEDHARA K M

Karnataka High Court · October 27, 2026

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