Juturu Lokeswara Reddy Vs K. Bharathi

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAV^^TJog

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TUESDAY, THE SIXTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE MS JUSTICE B S BHANUMATHI

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CIVIL REVISION PETITION NO: 2824 OF 2024

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Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to allow the Revision Petition and set aside the Order in I.A.No.207 of 2022 in O.S.No.95 of 2011 on the file of Learned Family Court - cum - IV Additional District and Sessions Judge, Kurnool dated 24.10.2024, and allow I.A.No.207 of 2022 in O.S.No.95 of 2011 on the file of Learned Family Court cum - IV Additional District and Sessions Judge, Kurnool, consequently reject the Plaint in O.S.No.95 of 2011 on the file of the Learned Family Court - cum - IV Additional District and Sessions Judge Kurnool.

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Between:

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Juturu Lokeswara Reddy, S/o. J Narayana Reddy, aged about 59 years, Hindu, Business, R/o. Gargeyapuram Village, Kurnool, Now residing at H.No. 1-55/12/AH/D-301, Aparna Heights -I, Near Chirac Public School, Botanical Garden Road, Kondapur, Serlingampalli K.V.Ranga Reddy District, Telangana State.

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...PETITIONER/DEFENDANT NO.10

AND

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K. Bharathi, W/o. K Vinay Murthi, Aged 73 years, Hindu, Female, R/o. Plot No.9, 4-11-52/9, Ramakrishna Nagar Colony, Kummarigunta, Hayathnagar, Hyderabad.

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Sri Indraganti Bhusanam, S/o.Late. Nagabhushanam, Aged 69 years Hindu, Male, R/o. 43-938, N R Peta Upstairs, Kurnool.

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M.V. Yeshodha,, (Died) W/o. M.V.Kamalakar.

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Sri Vajram Bhaskar, S/o. Late. V. Srinivasa Rao, Aged 55 years, Occ Advocate, Hindu, Male, R/o. 43/94A, N.R. Peta, Kurnool.

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Sri Vajram Krishnamurthy, S/o. Late V. Srinvasa Rao, Aged 51 years, Hindu, Male, R/o. H.No.54-24/G9, Upstairs, Kurnool.

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Sri Vajram Ramesh Kumar, S/o. Late V Srinivasa Rao, Aged 49 years, Hindu, Male, R/o. Flat No. 101, Satvi Block, Venkateswara Hights, 0pp. HMT Nagar, Nacharam Main Road, Hyderabad-500076.

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Sri Vajram Sivaramaprasad, S/o. Late V. Srinivasarao, Hindu, aged about 53 years R/o. D.NO.51-980-A2, Upstairs, Elluru Nagar, Kurnool.

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Mrs. S.A. Gayathri, W/o. S A Shyamnath, Aged 57 years, Hindu, Male, R/o. MST street, 0pp. Venkateswara Temple, Madhugiri Tamkur District, Karnataka State.

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Indraganti Roopavani, W/o. Indraganti Bhushanam, Aged 59 years Hindu, Female, R/o. 43-93B, N R peta, Kurnool.

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Sri Varjam Srinivasa Rao (Died),, S/o. Narayana Rao, Aged about 85 years. Advocate, R/o. G-20, C- Block Perks-1, Uppilayapalam, Coimbathore, Tamilnadu State.

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Mamilapalli Divya, D/o. M.V.Kamalakar, Aged 34 years, Hindu, Female, R/o. Flat No.5333, C-Block, Sarah Homes, 0pp. 175 Puller, Upparapalli X Road, Attapur, Hyderabad.

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Mamillapalli Teja, S/o. MV Kamalakar, Aged 32 years, Hindu, Female, R/o. Flat No.5333, C-Block, Sarah Homes, 0pp. 175 Puller, Upparapalli X Road, Attapur, Hyderabad.

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M.V.Kamalakar, S/o. Late Sastrulu, Aged 65 years, Hindu, Male, R/o. Flat No.5333, C-Block, Sarah Homes, 0pp. 175 Puller, Upparapalli X Road, Attapur, Hyderabad.

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...RESPONDENTS/DEFENDANTS

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lA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in^{O.S.No.95of2011onthe} file of Learned Family Court - cum - IV Additional District and Sessions Judge, Kurnool, pending disposal of the present Civil^{RevisionPetition.}

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Counsel for the Petitioner: SRI. VIVEKANANDA VIRUPAKSHA

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Counsel for the Respondents: SRI G MANI KUMAR

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The Court made the following Order:

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APHC010509752024

IN THE HIGH COURT OF ANDHRA PRADESH

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AT AMARAVATI

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[3311]

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(Special Original Jurisdiction)

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Tuesday, the sixth day of May two thousand and twenty^five

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Present

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The Honourable Ms. Justice B. S. Bhanumathi

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Civil Revision Petition No:2824 of 2024

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Between:

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Juturu Lokeswara Reddy

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...Petitioner

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and

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K.Bharathi and others

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...Respondents

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Counsel for the petitioner.

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Vivekananda Virupaksha

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Counsel for the respondents:

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I.G.Mani Kumar

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The Court made the following:

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BSB, J C.R.P.No.2824 of 2024

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ORDER:

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The Civil Revision Petition is filed under Article 227 of Constitution of India against the order dated 24.10.2024, dismissing the I.A.No.207 of 2022 in O.S No.95 of 2011 on the file of Family Court, Kurnool, filed under Order VII, rule 11 and Section 151 CPC, seeking to reject the plaint for want of cause of action. 2. The respondent No.1 / plaintiff initially filed suit, against the revision petitioners / defendant No. 10 and 9 others seeking partition of suit schedule property to an extent of 250 sq. yards bearing door No.4394A and another site of 250 sq. yards bearing Door No.43-93B. As the plaintiff did not come forward, the suit was dismissed for default on 18.08.2017 and then it was restored on filing a petition. As it is a suit for partition and the defendant No.7 filed petition to transpose him as plaintiff, because the original plaintiff, in collusion with other defendants, IS not coming forward to lead evidence. Pending disposal of the petition, the defendant No.1 died and his legal representatives were brought on record. In the said suit, the respondent No.1 / plaintiff claimed a share in the plaint A to C schedule properties as a coparcener under the amended provision of Section 6 of the Hindu Succession Act 1956. The plaintiff pleaded that the properties in the suit are Hindu joint family properties, originally acquired by the ancestors of her grandfather, and continued to be held jointly by the family members as coparceners. It was claimed that the plaintiff, being a daughter, is entitled to an equal share in the joint family properties under Section 6 of the Hindu Succession Act, 1956 as amended by Act 39 of 2005 with effect from 09.09.2005.

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BbB, J C.R.P.No.2824 of 2024

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The petitioner herein / defendant in the suit, filed^lANo.207 of 2022 under Order VII, Rule 11(d) CPC, praying for^rejectionof the plaint on the ground that it discloses no cause of^{actionagainsthimin} respect of Item No.2 of the plaint schedule property^{whichwasalienated} in his favour through a registered sale deed, dated 09.08.2004, executed by the 1®‘ defendant. It was further pleaded^{that,asperthe} averments in the plaint itself, the suit schedule properties^areclaimedto be ancestral properties of a Hindu joint family, originally acquired by^the ancestors of the plaintiff’s grandfather. In such properties, coparcenary rights accrue only to coparceners of the family. The petitioner contended that the plaintiff failed to plead how she^{isentitledtoashare} in the suit schedule properties, and that the plaint is silent on how any coparcenary or succession right accrued in her favour,^especially in respect of the said Item No.2. It was further submitted^thatunderthe unamended law, daughters had no coparcenary rights prior to 05.09.1985, and even after the 1985 amendment introducing^Section 29A, such rights were available only to unmarried daughters^asonthe date of commencement of the said amendment. The I.A.^{furtherstated} that the relevant statutory provision granting full coparcenary rights to daughters is the amended Section 6 of the Hindu Succession^Act,which came into force in 2005 i.e., dated 09.09.2005. However, the proviso to Section 6(1) dearly stipulates that any alienation^{ordisposition} made before 20.12.2004 shall not be affected or invalidated by the amendment. Further, referring to para 7 of the plaint, the petitioner highlighted that the sale deed in his favour was executed on 09.08.2004, much before the cut-off date of 20.12.2004. It was specifically pleaded that as on that date, the 1®* defendant,^beingthe sole surviving coparcener, had the legal right to alienate^itemNo.2,and .that the plaintiff had no subsisting right to claim partition in respect of

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BSB, J C.R.P.No.2824 of 2024

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the said property. The petitioner also submitted that^{thevalidityofthe} sale deed has not been questioned by the plaintiff^{withintheperiodof} limitation, and as such, the transaction remains unchallenged and binding. On the basis of these averments, the petitioner^{contendedthat} there is no cause of action against him, and the suit,^totheextent it pertains to item No.2 and against him alone, is liable^{toberejectedin} the interest of justice.

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The respondent No.7 / defendant No.6 filed counter^opposingI.A. No.207 of 2022, alleging briefly as follows; That the petitioner wrongly stated that the suit stood abated against the 1 defendant (2 nd respondent) upon his death on 10.07.2021 and that there was no requirement to implead^{hislegalheirs}

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in the application for rejection. This contention is factually^andlegally incorrect, and that the petitioner was fully aware^{ofthedeathofthe1®‘} defendant prior to filing the petition on 26.08.2022. Under the procedural framework of the Civil Procedure Code and^CivilRulesof Practice, there is no provision for filing an explanatory affidavit in support of an original affidavit as sought to be done^{bythepetitioner.} Once the petitioner was aware of the death of the 1®^^defendant, it was his primary duty to implead the legal heirs of the^{deceased1®^defendant} in the application filed by him. Failure to do so,^{rendersthepetitionnot} maintainable. The petitioner’s attempt to proceed without^impleading them is a serious procedural lapse. The petitioner^{hascolludedwiththe} the

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1 respondent / plaintiff and other defendants, including respondents No.1, 3, 4, 5, 6, and 8 to 11 (defendants^{No.1to5and6to} 11), and the affidavit and petition were filed with^{anulteriormotiveto} defeat the interest of contesting parties, especially^{therespondentNo.7.}

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BSB,J C.R.P.No.2824 of 2024

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The petition seeking his transposition as plaintiff^{ispending,because} the 1®* respondent / plaintiff has colluded with the petitioner / 10 th defendant and other respondents i.e., defendants No.1^to5and6to11. The present I.A. has been filed by the petitioner only^{withanintentionto} delay the proceedings and avoid a proper adjudication of the dispute. 5. The trial Court, after hearing both the parties and considering the written arguments, dismissed the petition on the ground^{thattheissueof} validity of sale deed and rights of parties are matters that require trial, and the rejection of plaint partially at this stage is not legally permissible, particularly in a partition suit involving disputed questions of title and coparcenary rights.

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Aggrieved by the order, this revision petition was filed by the petitioner invoking the supervisory jurisdiction of^{thisCourtunderArticle} 227 of the Constitution of India.

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The learned counsel for the revision petitioner vehemently contended that since the plaintiff claimed her right by virtue of amended Section 6 of the Hindu Succession Act, 1956 in the year 2005, the property sold before the cut-off date mentioned in the amended provisions are saved, and therefore, the item of property^sold to the revision petitioner before such date is not subject of the partiable property and therefore, there is no cause of action as against that property and therefore, the suit in respect of that item of property shall be rejected. He further submitted that the suit in respect of part of relief or against some of the parties can also be rejected and placed reliance on the decision of the Supreme Court in The Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust represented

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by its Chairperson / Managing TrusteeV He further placed^reliance on the decision of the High Court of Bombay in Sheela^RamVidhani and others Vs. S.K. Trading Company and others^, wherein it was held that the plaint can be rejected as a whole against^someofthe defendants.

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The learned counsel for the revision petitioner submitted^thatas the contention of the plaintiff is only based on the^{amendedprovision,} the cause of action shall be examined only in the light^oftheamended provision and consequently, there is no cause of action^insofarasthe property covered by the sale deed.

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On the other hand, the learned counsel for the 1®'^respondent/ plaintiff contended that a plaint cannot be rejected^{inpartandplaced} reliance on the decision of the Supreme Court in Geetha D/o late Krishna and others Vs. Nanjundaswamy and others^. He^further submitted that since the fact of Will is to be established through evidence, the plaint cannot be rejected at this juncture.

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Since the main contention of the petitioner is that^thesaledeed, dated 09.08.2004, renders the property impartiable^as it is no more a joint family property by virtue of the explanation to Section 6 of the Hindu Succession Act, 1956, there is no cause of action.

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of 11. A coparcener, be it a woman who claims share by virtue amended Section 6 of the Act, may or may not get share^dependingon the applicability of the amended provision to the coparcener,^butevenin the absence of application of such amended provision,^though the extent of share may be less, that woman sharer can^{certainlyhavea}

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'(2012) 8 see 706

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' 2021 (5) Bom eR 409

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' 2023 see Online Se 1407

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share by virtue of Section 8 of the Act out of the^{sharenotionallyallotted} to the deceased coparcener whose property is subject^{ofthepartition} suit. If the coparcener claiming share as per the amended^Section6of the Act is entitled to a share under said provision,^{theextentofshareis} larger than the share such coparcener gets under Section 8, if the amended Section 6 does not apply to the coparcener. Insofar as Section 8 of the Act is concerned, the right under the said provision is subject to the condition of death of the person leaving^theproperty dying intestate. The fact whether the said person died intestate^ortestateisa question of fact, which requires trial. Therefore, in the present case, the plaint cannot be rejected on the ground claimed by the petitioner.

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