(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 10607 OF 2010 1. Karbhari s/o. Rambhau Game, Age : 6 years, Occupation : Education, R/o. Laul, Taluka : Majalgaon, District : Beed. 2. Komal Rambhau Game, Age : 8 years, Occupation : Education, R/o. : Laul, Taluka : Majalgaon, District : Beed. Through next friend, Tulsabai Ashruba Misal, Age : 50 years, Occupation : Agri. & Household, R/o. Laul, Taluka : Majalgaon, .. Petitioners District : Beed. (Original plaintiffs) versus 1. Sadashiv s/o. Karbhari Game, Age : 60 years, Occupation : Agriculture, R/o. : Jaigaon Wangi, Taluka : Parli (V), District : Beed. (2) 2. Ashok s/o. Sadashiv Game, Age : 36 years, Occupation : Agriculture, R/o. Jaigaon Wangi, Taluka : Parli (V), District : Beed. 3. Rambhau s/o. Sadashiv Game, Age : 33 years, Occupation : Agriculture, R/o. : Jaigaon Wangi, Taluka : Parli (V), District : Beed. 4. Laxman s/o. Sadashiv Game, Age : 21 years, Occupation : Agriculture, R/o. Jaigaon Wangi, Taluka : Parli (V), District : Beed. 5. Mahadev s/o. Sadashiv Game, Age : 20 years, Occupation : Agriculture, R/o. : Jaigaon Wangi, Taluka : Parli (V), District : Beed. 6. Sojarabai Sadashiv Game, Age : 55 years, Occupation : Agriculture, R/o. Jaigaon Wangi, Taluka : Parli (V), .. Respondents District : Beed. (Original defendants) ....................... (3) Mr. B.S. Kudale, Advocate, for the petitioners. Mr. V.M. Maney, Advocate, for respondent nos.1 to 6. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 4TH MAY 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. B.S. Kudale, for the petitioners, and Adv. Mr. V.M. Maney, for the respondents. 2. Rule. Rule made returnable forthwith. Heard finally with consent. 3. Petitioners before this court are minor and petition is filed by them through their maternal grandmother. In a suit filed for partition and separate possession, they wanted to add a house property as ancestral property and that has been rejected by the impugned order dated 20-9-2010, by order passed by the learned Joint Civil Judge (Junior Division), Parli Vaijanath, holding that application was belated, trial had already started and there was no reason whatsoever for moving this application. (4) 4. Adv. Mr. B.S. Kudale, for the petitioners, points out that the petitioners' father is party defendant in the suit and respondent no.3 before this court. The said respondent no.3 is accused of committing murder of mother of petitioners and hence some dispute is going on in the family. While drafting plaint, therefore, leave was specifically reserved to add the properties as and when occasion arises. He further states that as petitioners are minors, their amendment application could not have been treated as belated. 5. According to Adv. Mr. V.M. Maney, for the respondents, children are not in the custody of maternal grandmother of the petitioners and they are residing happily with respondent no.3. He states that because of unfortunate incident, the inlaws of respondent no.3 are using children to harass respondent no.3. He points out that in application for amendment, as filed, reason of ignorance of property proposed to be added is not pleaded anywhere. He contends that as recording of evidence has already started, view taken by the trial court is in accordance with law and does not call for any interference. 6. Adv. Mr. Maney also points out that said inlaws had (5) approached District Court at Ambajogai for custody of minor children against present respondent no.3 and the court was ultimately required to dismiss those proceedings in default. He, therefore, requests the court not to interfere in the matter. 7. After hearing respective Counsel, I find that plaintiffs before trial court are minor and they are contesting the matter through their maternal grandmother. The correctness of allegations of respondent no.3 (natural father) are not very relevant at this stage. If the custody of minor children is with respondent no.3, that also cannot be a ground relevant for consideration at this stage. 8. Respondent no.3 has to show that his interest is not adverse to the interest of his minor children. For that, he should not have objected to property being added to suit as suit property. The petitioners have while filing plaint, expressly reserved leave to add to plaint / properties and accordingly application was filed. 9. In this peculiar situation, though the application for amendment is not happily worded, I am inclined to interfere in the matter. Respondent no.3 being natural father of petitioners, was duty bound to disclose before the trial court, all properties (6) with him so as to enable that court to have fair adjudication. In the circumstances, without observing anything more, application moved by the petitioners vide Exhibit 57/D will have to be allowed. 10. In the result, the petition is allowed. (i) The impugned order dated 20-9-2010, passed by the learned Joint Civil Judge (Junior Division), Parli Vaijanath, below Exhibit 57, in Regular Civil Suit No. 105/2005, is quashed and set aside. (ii) Application Exhibit 57/D moved by the petitioners before the trial court is allowed and property mentioned therein in paragraph 2 is allowed to be added as suit property to plaint. The plaint be amended accordingly by 17th June 2011. Liberty to the present respondent no.3 to carry out consequential amendment, if any, thereafter. 11. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE bgp/wp10607