Allowed

Koshy Abraham v. Smt B K Jayalakshmi

Karnataka HC29 Nov 2021CRP/121/2021

Case brief

AI extract

What is this about?

The High Court allowed an application for rejection of a partition suit bar by law due to a prior partition in 1994. Property devolved under Section 8 to the father individually, excluding the 2005 amendments from applying to daughter claiming partition against father's share.

What did the court decide?

Impugned order dated 10.03.2021 set aside. Application I.A. No.11 allowed. Plaint in O.S. No.680/2008 rejected.

Koshy Abraham Vs Smt B K Jayalakshmi — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

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C.R.P.No.121/2021

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BETWEEN:

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KOSHY ABRAHAM, S/O LATE A.K.ABRAHAM, AGED ABOUT 50 YEARS, R/O NO.3, CHURCH ROAD, SHANTHI NAGAR, BANGALORE, KARNATAKA-560 027.

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…PETITIONER

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(BY SMT.JAYNA KOTHARI, SR. COUNSEL FOR SHRI.ROHAN KOTHARI, ADVOCATE)

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AND:

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SMT.B.K.JAYALAKSHMI, D/O KEMPANNA, W/O KARIGOWDA, AGED ABOUT 36 YEARS, R/O CHIKKASOLUR, SOLUR HOBLI, MAGADI TALUKA, RAMANAGARAM DISTRICT.

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MUNE GOWDA, S/O KEMPANNA, AGED ABOUT 44 YEARS,

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JAYANNA, S/O KEMPANNA,

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AGED ABOUT 41 YEARS,

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SMT.LAKSHMAMMA W/O LATE KEMPANNA AGED ABOUT 69 YEARS

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RESPONDENT NOS.2, 3 AND 4, RESIDING AT BOYHILAHALLI VILLAGE, JALA HOBLI, BANGALORE, NORTH TALUKA, KARNATAKA-560 013. ..RESPONDENTS

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(BY SHRI.H.R.ANANTHA KRISHNA MURTHY, FOR SHRI H.RAMACHANDRA, ADV. FOR R1, SHRI H.A.MANJUNATHA, ADV. FOR R2 TO R4)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC 1908 AGAINST THE ORDER DATED 10.03.2021 PASSED ON IA No.11 IN O.S.No.680/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI, REJECTING THE IA No.11 FILED UNDER ORDER 7 RULE 11 (a) AND (d) R/W ORDER 12 RULE 6 R/W SECTION 151 OF CPC FOR REJECTION OF PLAINT.

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THIS CRP COMING ON FOR FURTHER HEARING ON 05.10.2021 AND THE SAME HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for the

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following reliefs:

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"A. Call for the records of the OS No.680/2008 pending on the files of the Hon'ble Senior Civil Judge & JMFC, Devanahalli.

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B. Set aside the interim order dated 10.03.2021 passed by the Hon'ble Senior Civil Judge & JMFC,

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Devanahalli, in OS No.680/2008, which has been produced herein as ANNEXURE-A

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C. Allow the application being I.A No.11 in OS No.680/2008 filed by the petitioner herein for rejection of plaint and dismiss the said suit of Respondent No.1 and;

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D. Pass such other or further orders as may be deemed just and proper in the interest of justice."

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The facts of the case are:

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2.1. O.S No.680/2008 was filed by respondent

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No.1 - plaintiff seeking the following reliefs:

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"a) pass a judgment and Decree by dividing the schedule property into 4 equal shares and to allot 1 share to the plaintiff;

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b) to declare that the sale deed executed by the defendants 1 to 3 in favour of defendant No.4 of item No.4 of the schedule properties, as per registered Doc.No.YAN/1/06500-2005-2006 in C.D.No.YAND147 dt.20.9.2005 is not binding on the share of the plaintiff;

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c) to award mesne profits;

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d) to award costs of this suit;

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e) to pass such other orders as this Hon'ble court deems fit to grant in the circumstances of the case, in the interest of Justice and equity."

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2.2. In the said suit, an application under Order VII Rule 11(a) and (d) read with Order XII Rule 6 of the Code of Civil Procedure, 1908 (for short, "CPC") was filed by the petitioner - defendant No.4 on 12.03.2020 seeking for rejection of the plaint on the ground that reading of the plaint does not disclose any cause of action and the suit was barred by law.

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2.3. In terms of the pleading in paragraph 3 of the plaint, it was alleged in the application that during the lifetime of plaintiff's grandfather Chikka Mallappa, he acquired several lands and subsequent to his death, his children partitioned all the joint family properties by way of Panchayath Parikath on

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01.06.1994. In the said partition, 'B'

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schedule properties were allotted to the share of defendant No.1.

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2.4. Such pleadings in the plaint make it clear that Chikka Mallappa having died intestate and the property having devolved under Section 8 of the Hindu Succession Act, 1956 (for short, "the said Act") under the partition of 01.06.1994, the property becomes an individual and exclusive property of defendant No.1 and defendant No.1 inherited the same with an absolute right to alienate the same.

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2.5. In furtherance of the said right, defendant No.1 along with his sons executed a registered sale deed dated 20.09.2005 in favour of the petitioner - defendant No.4. Hence, on this ground it was contended that

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the plaint is liable to be rejected as barred by the provisions of Section 8 of the said Act and there being an admission that there was a partition of 01.06.1994, the suit is liable to be dismissed in terms of Order XII Rule 6 of CPC.

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2.6. The said application came to be objected by the plaintiff contending that the suit was filed seeking for declaration that the sale deed dated 20.09.2005 executed by defendant Nos.1 to 3 in favour of defendant No.4 was not binding on the plaintiff's share.

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2.7. The defendants had admitted in their written statement that item No.4 of the schedule properties was the ancestral property of defendant No.1 i.e. father of the plaintiff. It was also admitted that defendant No.4 had

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purchased the same from defendant Nos.1 to 3. Therefore, the plaintiff being daughter of defendant No.1 having not been excluded from such share, is a coparcener having right, title and interest as per Section 6 of the said Act.

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2.8. The plaintiff was not aware of the said sale deed. As soon as she came to know about it, the suit was filed. The plaintiff, being a daughter of defendant No.1, the schedule properties admittedly being ancestral properties and joint family properties of defendant Nos.1 to 3, the plaintiff would have equal right over the said properties. They cannot be said to be individual or exclusive property of defendant No.1 and he

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had no exclusive right to alienate the same as per Section 8 of the said Act.

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2.9. It is therefore, contended that all the grounds which have been urged by defendant No.4 in the application were questions of facts and not question of law. Hence, the question of facts, which requires trial cannot be agitated in an application under Order VII Rule 11 of CPC.

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2.10. The contention of the plaintiff was that she being a daughter of defendant No.1 was entitled to the schedule properties in terms

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of Section 6 of the said Act. This itself is enough to establish that there is a cause of action to file the present suit. Therefore, it cannot be said that the plaint did not

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disclose a cause of action for the purposes of filing of the suit. It is therefore, alleged that maintainability of the suit cannot be decided without adducing evidence and all the grounds which were contended in the application are liable to be dismissed.

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2.11. Upon hearing both the parties, the Trial Court by the impugned order dated 10.03.2021 dismissed the application on the ground that there was no direct judgment as regards rejection of the plaint in terms of Section 8 of the said Act and on grounds raised in the application.

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2.12. The Trial Court held that the decision relied upon by the petitioner in the case of VIKRAM SINGH vs. ANIL KUMAR AND OTHERS passed in Civil Revision

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No.42/2017 was not applicable, since the same was not reported in any law journal.

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2.13. The Trial Court rejected the contention of the petitioner that defendant No.1 acquired the properties under a partition between himself and his brothers and that defendant No.1 had taken the said properties in his individual capacity and therefore, the schedule properties were not ancestral or joint family properties.

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2.14. The Trial Court took into consideration the submission of the plaintiff that claim of the plaintiff was under Section 6 of the said Act and held that unless the plaintiff is given an opportunity to give evidence to prove that she is claiming partition under Section 6 of the said Act, the Court cannot reject the

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plaint and the application filed by defendant No.4 is not maintainable under Section 8 of the said Act and therefore, dismissed the application.

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2.15. Being aggrieved by the impugned order, the petitioner is before this Court.

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Smt. Jayna Kothari, learned Senior Counsel appearing for the petitioner would contend that

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3.1. A reading of the plaint, more particularly paragraph 3, would indicate that during the lifetime of the plaintiff's grandfather Chikka Mallappa, he had acquired several lands and subsequent to his death, his children partitioned all the joint family properties by way of Panchayath Parikath on 01.06.1994.

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3.2. She submits that the plaintiff's grandfather

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Chikka Mallappa had acquired the properties in his individual capacity. Therefore, the properties so acquired would not be joint family properties, partition of the properties having occurred on 01.06.1994. Even in terms of the averments made in the plaint the partition deed having been accepted, defendant No.1 having derived title over the schedule properties he had all right to deal with the same.

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3.3. When defendant No.1 along with defendant Nos.2 and 3 executed the sale deed in favour of defendant No.4, it cannot be challenged by the plaintiff, more so when the partition deed relied upon by the plaintiff not having been challenged by her. Relying

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upon the said partition deed, she submits that all the contents and averments made in the said partition are also binding on the plaintiff.

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3.4. The schedule properties being acquired by the plaintiff's grand father, the same are self-acquired properties of the plaintiff's grandfather. Therefore, that property cannot be said to be either joint family properties or ancestral properties. The schedule properties can only be described as self-acquired property of the plaintiff's grandfather. The partition having been effected in the year 1994, any partition of the properties would be covered under Section 8 of the said Act. The plaintiff, being daughter of defendant No.1, would not be

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entitled to any share in the properties, since the property is neither joint family properties nor ancestral property for application of Section 6 of the said Act, it is only Section 8 which would be applicable.

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3.5. In this regard, she relied upon a decision of the Apex Court in the case of COMMISSIONER OF WEALTH TAX, KANPUR AND OTHERS vs. CHANDER SEN AND OTHERS reported in ( 1986 ) 3 SCC 567 , more particularly paragraphs 21 to 26, which are reproduced hereunder for easy reference:

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"21. It is necessary to bear in mind the preamble to the Hindu Succession Act, 1956. The preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

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22. In view of the preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and

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does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under section 8 of the Act included widow, mother, daughter of predeceased son etc.

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23. Before we conclude we may state that we have noted the observations of Mulla's "Commentary on Hindu law" 15th Edn. dealing with Section 6 of the Hindu Succession Act at pages 924-26 as well as Mayne's on "Hindu Law", 12th Edn. pages 918-919.

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24. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes

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son's son but included son of a predeceased son cannot be ignored.

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25. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore.

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26. In the premises the judgment and order of the Allahabad High Court under appeal is affirmed and the Appeals Nos.1668-1669 of 1974 are dismissed with costs. Accordingly Appeal No. 1670 of 1974 in Income Tax Reference which must follow as a consequence in view of the findings that the sums standing to the credit of Rangi Lal belongs to Chander Sen in his individual capacity and not the joint Hindu family, the interest of Rs.23.330 was an allowable deduction in respect of the income of the family from the business. This appeal also fails and is dismissed with costs."

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3.6. The decision of the Apex Court in the case of YUDHISHTER vs. ASHOK KUMAR reported in (1987) 1 SCC 204 , more particularly paragraph 10, which is reproduced hereunder for easy reference:

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" This question has been considered by this Court in CWT v. Chander Sen, where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a

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share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. pages 924-926 as well as Mayne's on Hindu Law 12th Edn. pages 918-919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in

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respect of the ancestral house. But as mentioned hereinbefore, even if we proceed on the assumption that the respondent was a member of the HUF which owned the ancestral house."

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3.7. She submitted that the property acquired by

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the grandfather of the plaintiff is not ancestral property and Section 6 of the said Act would not be applicable, the conditions laid down by the Apex Court in the case of UTTAM vs. SAUBHAG SINGH AND OTHERS reported in (2016) 4 SCC 68 , would be applicable, more particularly as stated in paragraph 18. The said paragraph 18 is reproduced hereunder for easy reference:

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" Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and

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Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:-

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(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).

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(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.

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(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.

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(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law

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immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property.

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(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

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(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants."

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3.8. She relies upon a decision of this Court in

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the case of SHAKUNTALA AND ORS. vs. BASAVARAJ AND ORS. passed in REGULAR FIRST APPEAL No.4212/2013 dated 19.07.2016, more particularly paragraphs 7, 9 and 10, which are reproduced hereunder for easy reference:

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"7. The plaintiffs are the daughters of first defendant. First defendant’s father-Basavanneppa died intestate in the year 1972. There is no dispute that the suit properties were purchased by Basavanneppa. Basavanneppa had purchased the suit land by sale deed dated 28.12.1966 as per Ex.P5. Subsequently, in the year 2004, in the partition between the sons, daughters and widow of deceased Basavanneppa, the suit properties fell to the share of the plaintiffs’ father-defendant No.1. The aforesaid partition was effected by a registered partition deed dated 20.04.2004 as per Ex.P9.

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9. After coming into force of the Hindu Succession Act, 1956, self acquired or separate property of a male Hindu, when devolved on his heirs, would assume the character of ‘self acquired property’ in their hands and they hold it as their individual and separate property. It is relevant to state that there was divergence of judicial opinion as to whether a son who inherits the self acquired or coparcenary property of his father takes it as his separate property or holds it as property of his own joint family, till the decision of the Supreme Court in W.T.Commr., Kanpur v. Chander Sen [AIR 1986 SC 1753]. It is appropriate to refer to the following observations made therein:

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“19. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

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20. In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by S. 8

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he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under S. 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in S. 8. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by S. 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under S. 8 of the Hindu Succession Act would be HUF property in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under S. 8 of the Act included widow, mother, daughter of predeceased son etc.”

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(Underlining supplied)

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10. It is also relevant to refer to the following observations made by the Supreme Court in Yudhishter v. Ashok Kumar [AIR 1987 SC 558]:

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“10. This question has been considered by this Court in Commr. of Wealth Tax, Kanpur v. Chander Sen, (1986) 3 SCC 567 : (AIR 1986 SC 1753), where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source, from the grandfather or from any other source, be it

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separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but takes it in his individual capacity.”

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(Underlining Supplied)

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As stated above, after coming into force of the Hindu Succession Act, 1956, self acquired or separate property of a male Hindu, on his dying intestate, devolves on his heirs in their individual capacity and not as coparcenary property, and in such a case, their children will not acquire any right by birth in such property".

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3.9. Relying on the aforesaid paragraphs of the said decision, she submits that the plaintiff's grandfather had purchased the property in his individual capacity and, therefore, the said decision would be applicable and amendment to the said Act would not be applicable to self-acquired property of the grandfather of the plaintiff. Since the same

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is separate and not ancestral or joint family property.

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3.10. She further relies on a decision of the Madhya Pradesh High Court in the case of VIKRAM SINGH vs. ANIL KUMAR & OTHERS passed in CIVIL REVISION

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No.42/2017 , more particularly paragraphs 10 to 11 thereof, which are reproduced herein for easy reference:

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" 10. The Supreme court in the matter of Commissioner of Wealth Tax Kanpur etc. Vs. Chander Sen etc. reported in AIR 1986 SC 1753 while approving the view taken by this Court in the matter of Shrivallabhdas Modani Vs. Commissioner of Income Tax MP-I, reported in (1982) 138 ITR 673; Allahabad High court in the matter of Commissioner of Income tax UP Vs. Ram Rakshpal Ashok Kumar, reported in(1968) 67 ITR 164; the Full Bench judgment of Madras High court in the matter of Additional Commissioner of Income Tax Vs. P.L. Karuppan Chettiar, reported in[1978] 114 ITR 523; and judgment of Andhra Pradesh High court in the matter of Commissioner of Wealth Tax A.P-II Vs. Mukundgirji, reported in 144 ITR 18,has held that since in Schedule to the Hindu Succession Act, only son is included and son's son is not included as Class I heir therefore,

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the son would inherit the property in the situation contemplated by Section 8 of the Act not as Karta of his own undivided family and that one should look only to the Act and not to the pre-existing Hindu law. Referring to Section 8 of the Act, it is held that son's son get excluded and the son alone inherits the property to the exclusion of his son. In the judgment of this Court in the matter of Shrivallabhdas Modani (supra) which has been approved by the Supreme court in the above judgment, it was held by this Court that son's son is not mentioned as Class I heir in the Schedule and therefore, he cannot get any right in the property of his grand-father under the Act. The right of son's son in his grand-father's property during the lifetime of his father which existed under the Hindu law as in force before the Act is not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property has ceased to have effect. It was further held that Section 8 of the Act should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. The Allahabad High court in the matter of Commissioner of Income Tax UP Vs. Ram Rakshpal Ashok Kumar (supra) has held that in case of assets of business left by father in the hands of his son, it would be governed by Section 8 of the Act and he would take in his individual capacity. The Madras High court in the matter of Additional Commissioner of Income Tax Vs. P.L. Karuppan Chettiar (supra) had held that by reason of Section 8 of the Act, the son's son gets excluded and the son alone inherits the property to the exclusion of his son and that the statutory provision contained in the Act must prevail in view of the unequivocal intention in the statute itself, expressed in Section 4(1). The Andhra Pradesh High court in the matter of Commissioner of Wealth Tax A.P-II Vs.Mukundgirji (supra) had taken the view that the

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properties which devolved upon heirs mentioned in Class I of Schedule under Section 8 of the Act constituted the absolute properties and the son's son will have no right by birth in such properties. The Supreme court in the matter of Chander Sen (supra)has approved the above view of this Court as well as Allahabad, Andhra Pradesh and Madras High Courts. The contrary view of the Gujarat High court has been disapproved by the Supreme court.

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11.In the matter of Yudhishter Vs. Ashok Kumar, reported in AIR 1987 SC 558 referring to the earlier judgment in the case of Chander Sen (supra) it has been held by the Supreme Court that the property which devolved upon the father on the demise of the grand-father cannot be said to be HUF property in the hands of the father vis-a-vis his own sons. In the matter of Sheela Devi and others Vs. Lal Chand and another reported in (2006) 8 SCC 581, it has been further clarified by the Supreme court by holding that prior to the commencement of the Act as per the Mitakshara law usage once a son was born he used to acquire an interest in the coparcenary property as an incident of his birth, but now the Act would prevail over the Hindu law. In that case son's son was born prior to the commencement of 1956 Act therefore, it was held that he would retain his share of the property as a coparcener even after the commencement of the 1956 Act, while father who had died in 1889, his share will devolve upon his heirs according to the provisions of the Act. The Single Bench of this Court in the matter of Chandrakanta and another Vs. Ashok Kumar and others, reported in 2002(3) MPLJ 576 has also held that after coming into force of Hindu Succession Act, the theory of birth right does not exist and the son gets share in the property only after death of his father. Similar view has also been taken by another Single Bench judgment in

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the matter of Babulal and others Vs. Ramkali Bai & others, reported in ILR [2012] MP1271.

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The aforesaid judgment of this Court has been upheld by the Apex Court in case of Uttam Vs. Saubhag Singh &Others, reported in 2016(4) SCC 68, therefore, from the aforesaid law, the issue has been settled now that during lifetime of father the son cannot claim the right in the property during the lifetime."

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3.11. By relying on the said decision, she submits that the earlier decision in the case of UTTAM vs. SAUBHAGSINGH having been consistently applied by all the Courts, when a property devolves upon father from the grandfather, the same cannot be ancestral property and the same is self-acquired property. Applying the said principles, in the present case, the property, subject matter is not a joint family or ancestral properties.

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3.12. She relied on the decision of the Delhi High Court in the case of SURENDER KUMAR vs.

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DHANI RAM AND ORS. passed in CS (OS) No.1737/2012 dated 18.01.2016 reported in MANU/DE/0126/2016 , more particularly paragraphs 9 to 13, which are reproduced hereunder for easy reference:

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"9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen case [(1986) 3 SCC 567 : (1986) 161 ITR 370] and Yudhishter case [(1987) 1 SCC 204] there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF

¶145

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properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.

¶147

10. A reference to the plaint in the present case shows that it is claimed that ownership of properties by late Sh Jage Ram in his name was as joint Hindu family properties. Such a bald averment in itself cannot create an HUF unless it was pleaded that late Sh Jage Ram inherited the properties from his paternal ancestors prior to 1956 or that late Sh Jage Ram created an HUF by throwing his own properties into a common hotchpotch. These essential averments are completely missing in the plaint and therefore making a casual statement of existence of an HUF does not mean the necessary factual cause of action, as required in law, is pleaded in the plaint of existence of an HUF and of its properties.

¶148

11. I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e. whether because of pre 1956 position or because of the post 1956 position on account of throwing of properties into a common hotchpotch, needs to be now mentioned especially after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as “the Benami Act”) and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have

¶149

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come from the person who claims right in the property though title deeds of the property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami Act by its sub-section (3) which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the main provision contained in sub-sections (1) and (2) of Section 4 of the Benami Act, then, to take the case outside sub-sections (1) and (2) of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded, this Court in fact would be negating the mandate of the language contained in sub-sections (1) and (2) of Section 4 of the Benami Act.

¶151

12. This Court is flooded with litigations where only self-serving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action, and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen case [(1986) 3 SCC 567 : (1986) 161 ITR 370] and Yudhishter case [(1987) 1 SCC 204] come in, the pre 1956 position and the post 1956 position has to be made clear, and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act, 1956, that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF/joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the

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¶153

cause of action of an HUF and each property as an HUF is pleaded.

¶154

13. In view of the above, actually the application filed under Order 7 Rule 11 CPC in fact is treated as an application under Order 12 Rule 6 CPC, inasmuch as, it is observed on the admitted facts as pleaded in the plaint that no HUF and its properties are found to exist. There is no averment in the plaint that late Sh Jage Ram inherited property(s) from his paternal ancestors prior to 1956. In such a situation, therefore, the properties in the hands of late Sh Jage Ram cannot be HUF properties in his hands because there is no averment of late Sh Jage Ram inheriting ancestral property(s) from his paternal ancestors prior to 1956. There is no averment in the plaint also of late Sh Jage Ram's properties being HUF properties because HUF was created after 1956 by late Sh Jage Ram by throwing properties into a common hotchpotch. I have already elaborated in detail above as to how an HUF has to be pleaded to exist in the pre 1956 and the post 1956 positions and the necessary averments which had to be made in the present plaint. The suit plaint however grossly lacks the necessary averments as required in law to be made for a complete cause of action to be pleaded for existence of an HUF and its properties."

¶155

3.13. By relying on the aforesaid paragraphs of the said decision, she submitted that a mention in the plaint that the property is a joint family property would not suffice.

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There has to be specific averments and allegations made as to how a property become a joint family property and how the same is treated as joint family property. In the present case, no such averments having been made, it cannot ex facie be said that the property is a joint family property.

¶158

3.14. She relies upon the decision of the Apex Court in the case of VINEETA SHARMA vs. RAKESH SHARMA AND OTHERS reported in (2020) 9 SCC 1 , more particularly paragraph 137, which is reproduced hereunder for easy reference:

¶159

"Resultantly, we answer the reference as under:

¶160

137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

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137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings

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as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

¶164

137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

¶165

137.4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

¶166

137.5. In view of the rigour of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."

¶167

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3.15. By relying on the aforesaid paragraphs,

¶169

more particularly paragraph 137.2, she submits that any right of a daughter in terms of Section 6 (1) of the said Act would be subject to any alienation, partition or testamentary disposition which had taken place prior to 20.12.2004. As such, the plaintiff would not have right over the said properties.

¶170

3.16. She relies upon a decision of the Apex Court

¶171

in the case of BHANWAR SINGH vs. PURAN AND OTHERS reported in (2008)

¶172

3 SCC 87 , more particularly paragraph 24, which is reproduced hereunder for easy reference:

¶173

"It is true that the first Court of appeal also entered into the question of legal necessity for Sant Ram to alienate the property in favour of the contesting respondents but the said issue was considered in the alternative to the principal issue. If the first

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appellate court was correct in its opinion and we do not see any reason to differ therewith that Section 6 of the Hindu Succession Act was not attracted to the facts of this case in view of the fact that Sant Ram and his sisters having partitioned their properties became owners to the extent of 1/4th share each, he had the requisite right to transfer the lands falling within his share."

¶176

3.17. By relying on the said decision, she submits that on the expiry of the father, his children succeeded to the share of their father, their succession is in individual capacity and the joint family ceases to exist. Thereafter, the property loses the character of ancestral property on account of application of Section 8 of the said Act.

¶177

3.18. The decision of the Apex Court in the case of

¶178

HARDEO RAI vs. SAKUNTALA DEVI AND

¶179

OTHERS reported in (2008) 7 SCC 46 , more particularly paragraphs 21 and 22,

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which are reproduced hereunder for easy reference:

¶182

"21. One of the witnesses examined on behalf of the appellant admitted that the appellant had been in separate possession of the suit property. The appellant also in his deposition accepted that he and his other co-sharers were in separate possession of the property.

¶183

22. For the purpose of assigning one's interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a co-parcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as "joint tenants" but as "tenants in common". The decision of this Court in SBI, therefore is not applicable to the present case."

¶184

3.19. Relying on the said decision, she submits that as soon as the person expresses interest to partition a joint family property, it is not necessary that the partition is effected by metes and bounds. Any person who has expressed his interest to partition of the

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¶186

property, can sell or assign his interest in the joint family property. Once the share of the coparcener is determined, it ceases to be coparcenary property. The property would not be held as joint tenants but as tenants in common. In the present case, she submits that defendant No.1 having succeeded to his father's property, he was holding his share as a tenant in common and can execute a sale in favour of defendant No.4 there being no bar for such sale.

¶187

3.20. The decision of the Apex Court in the case of AKBAR ALI vs. UMAR KHAN AND OTHERS reported in 2021 SCC Online SC 238 , more particularly paragraph 7, which is reproduced hereunder for easy reference:

¶188

"7. In any case, an application under Order VII Rule 11 of the CPC for rejection of the plaint

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requires a meaningful reading of the plaint as a whole. As held by this Court in ITC v. Debts Recovery Appellate Tribunal reported in (1998) 2 SC 70 : AIR 1998 SC 634, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order VII Rule 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court. "

¶191

3.21. Relying on the said decision, she contends that an application under Order VII Rule 11 of CPC requires a meaningful reading of the plaint as a whole. The Apex Court held that clever drafting creating illusions of cause of action are not permitted in law and has to establish a clear right to sue in the plaint. In the present case, there is no clear right to sue and the Court has the inherent power to hold that the suit is a frivolous or vexatious litigation.

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¶193

3.22. Relying on the aforesaid decisions, she

¶194

submits that these aspects have not been rightly considered by the Trial Court. She further submits that the Trial Court has failed to take into consideration the decision

¶195

in the case of VIKRAM SINGH vs. ANIL

¶196

KUMAR AND OTHERS, referred to above, merely on the ground that the same is not a reported judgment. She submits that any unreported judgment is as good as reported judgment, which will have to be considered by any Court. Though the decision of the Madhya Pradesh High Court is not binding on the Court, the same has persuasive value

¶197

which was required to be considered, which the Trial Court has failed to do so.

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Per contra, Sri H.R. Anantha Krishna Murthy, learned counsel for respondent No.1 - plaintiff would submit that:

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4.1. The plaintiff is admittedly the daughter of defendant No.1 and, therefore, the plaintiff would have a share in defendant No.1's share in the property. Defendant No.1 having acquired the same under the partition deed, irrespective of whether the plaintiff had a share in the joint family property or not.

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4.2. The partition deed referred to is a Panchayath Parikat dated 01.06.1994. In paragraph 3 of the plaint it is stated that the said partition deed is not a registered document and being a non-registered

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document, the same cannot be relied upon even by the plaintiff in her evidence.

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4.3. When the plaintiff herself cannot rely upon the said document, the question of petitioner - defendant No.4 relying on the same would not arise at all.

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4.4. On this basis, he submits that the Panchayath Parikat referred in paragraph 3 cannot be taken into consideration while considering an application under Order VII Rule 11 of CPC. Whether Section 6 of the said Act is applicable or Section 8 is applicable, is a matter of trial which should be adjudicated only after the trial is conducted.

¶206

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4.5. Only claim of defendant No.4 is as regards item No.4 of the property and not insofar as item Nos.1 to 3 of the suit schedule properties are concerned. Other defendants have not filed any application under Order VII Rule 11 of CPC. The application filed by defendant No.4 - petitioner was only as regards item No.4 property. Therefore, if the submission of defendant No.4 - petitioner was to be accepted, it would amount to partial rejection of the plaint, which is not permissible since the suit would continue insofar as item Nos.1 to 3 of the suit schedule properties are concerned.

¶208

4.6. By referring to the RTCs produced along with the plaint, he submits that partition deed of 1994 has not been given effect to. The

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parties have not acted thereof. Therefore, even on this account, the partition deed dated 01.06.1994 cannot be referred to.

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4.7. He further submits that the property under

¶212

the RTC stood in the name of Chikka Mallappa, father of defendant No.1. Thereafter, the name of defendant No.1 has been inserted in column No.12 and the name of Chikka Mallappa continued in column No.9. It would also indicate that there is no partition, which was effected or given effect to.

¶213

4.8. Though only for collateral purposes, he refers to the contents of the partition deed, which is a document produced along with the plaint to contend that the properties

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¶215

partitioned under the partition deed were joint family properties.

¶216

4.9. He submits that irrespective of whether selfacquired or joint family properties, they are considered as joint family properties available for partition. Therefore, the decision in the case of UTTAM vs. SAUBHAG SINGH AND OTHERS is not applicable. He submits that the properties have been treated as the properties of joint family and continue to be joint in nature. There is no question of Section 8 of the said Act being applicable. The properties have not devolved by succession and the property continues to be joint family property.

¶217

4.10. He relied upon a decision of the Apex Court

¶218

in the case of SHYAM NARAYAN PRASAD

¶219

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vs. KRISHNA PRASAD AND OTHERS

¶221

reported in (2018) 7 SCC 646 , more particularly paragraph 12 thereof, which is reproduced hereunder for easy reference:

¶222

"It is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship."

¶223

4.11. By relying on the said paragraph of the

¶224

above decision, he submits that under Mitakshara Law, a male issue even if he succeeds to the property, the property continues to be the ancestral property or joint family property.

¶225

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4.12. He also relied upon a decision of the Apex

¶227

Court in the case of MAYAR (H.K) LTD. AND ORS. vs. OWNERS AND PARTIES, VESSEL M.V. FORTUNE EXPRESS AND

¶228

ORS. reported in AIR 2006 SCC 1828 , more particularly paragraph 11 thereof, which is reproduced hereunder for easy reference:

¶229

" From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the

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plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants."

¶232

4.13. Relying on the above decision, he contends that while considering the application under Order VII Rule 11 of CPC, neither the contents of the written statement nor an affidavit in support of the application can be looked into. There cannot be segregation of the pleadings. The entire pleadings has to be taken as a whole.

¶233

4.14. He relied upon a decision of the Apex Court

¶234

in the case of ERACH BOMAN KHAVAR vs. TUKARAM SHRIDHAR BHAT AND ORS.

¶235

reported in AIR 2014 SCC 544 , more

¶236

¶237

particularly paragraphs 11 and 38 thereof, which are reproduced hereunder for easy reference:

¶238

"11. The Division Bench placed reliance on Arjun Singh v. Mohindra Kumar and Ors. MANU/SC/0013/1963:AIR 1964 SC 993 and came to hold that when the second application for leave was filed, there was no change in the circumstances and in the absence of any changed circumstances, the second application for leave was not maintainable as it was barred by principles of res judicata being a successive application in the same court on selfsame facts. It was further opined that it is open to the Appellant to file an application for review or to file an appeal against the said order and as long as the said order remained alive, a fresh application could not have been entertained by the learned Company Judge. To interpret the term “grant of liberty” the Division Bench held that on the basis of the grant of liberty the case could not have been reopened. For the said conclusion reliance was placed on Kewal Chand Mimani v. S.K. Sen and Ors. MANU/SC/0394/2001: (2001) 6 SCC 512. The Division Bench, however, clarified that the Respondent No.3 therein would be entitled to make an application for grant of leave for instituting a fresh suit after taking recourse to such remedy for annulment of the order dated 23.2.2006 passed in Company Application No. 45 of 2006.

¶239

38. It is clear to us that the learned single Judge had not dealt with the application for grant of leave on merits; that the application was disposed of on the basis of a submission made by

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¶241

the third respondent that if an application for amendment is filed in the pending suit, he would not oppose the same; that the learned Company Judge on the basis of the statement recorded that it was not necessary to grant the present Judge’s Summons; and that liberty was granted to the applicant to apply if necessary. The Division Bench, we are disposed to think, has erroneously opined that the learned single Judge in the main part of the order having rejected the application could not have granted liberty to apply for filing of another application. As we notice, the Division Bench has not appositely appreciated the ratio laid down in Kewal Chand Mimani (supra) wherein the High Court had pronounced a judgment and, as a matter of practice, has stated “liberty to mention” and in that context, this Court stated that that did not confer jurisdiction on the High Court to dwell upon a different issue in a disposed of case. In fact, in the said case the order passed by this Court on earlier occasion has been reproduced wherein liberty was granted to get the matter adjudicated which, in the context, simply conveyed that as the controversy relating to transposition therein was pending before the High Court and the order indicated that the applicants were at liberty to raise all objections including the transposition and the right to contest in the capacity as appellants. When this Court said “liberty was granted to get the matter adjudicated”, it meant that it was open to the petitioner in the SLP to raise all contentions before the High Court as the High Court itself had granted liberty in the order which was the subject-matter of challenge and the matter was sub-judice. We are only analyzing on this score to highlight that words, namely, “grant of liberty” are to be understood, regard being had to the context in which they are used. Context is really material. Had the learned Company Judge adjudicated the matter on merits, the matter

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would have been absolutely different. He had, in fact, on the basis of a statement made by the learned counsel for the third respondent, had not dwelled upon the merits and, in that context, had granted liberty to applicant to apply, if necessary. It is eminently so because the learned Judge has also stated “it is not necessary to grant the present Judge’s Summons”. Thus, the application for grant of leave was really not dealt with on merits and on the basis of a statement of respondent No.3 the learned Company Judge opined that it was not necessary for the present and in that context liberty was granted. The principles stated in Arjun Singh (supra), Satyadhyan Ghosal (supra) and the other authorities clearly spell out that principle of res judicata operates at the successive stages in the same litigation but, the basic foundation of res judicata rests on delineation of merits and it has at least an expression of an opinion for rejection of an application. As is evident, there has been no advertence on merits and further the learned Company Judge has guardedly stated two facets, namely, “not necessary to grant present Judge’s Summons” and “liberty to applicant to apply, if necessary”. On a seemly reading of the order we have no shadow of doubt that the same could not have been treated to have operated as res judicata as has been held by the Division Bench. Therefore, the irresistible conclusion is that the Division Bench has fallen into serious error in dislodging the order granting leave by the learned Company Judge to file a fresh suit."

¶244

4.15. By relying upon the same, he contends that

¶245

once an earlier application under Order VII Rule 11 of CPC had been dismissed, the

¶246

¶247

question of filing the second application under Order VII Rule 11 of CPC would not arise. The dismissal of the first application under Order VII Rule 11 of CPC would constitute res judicata .

¶248

4.16. He also relied upon a decision of the Apex Court in the case of ALAPANA GUPTA THROUGH POWER OF ATTORNEY HOLDER vs. APG TOWERS PRIVATE LIMITED AND ANOTHER reported in (2019) 15 SCC 46 , more particularly paragraphs 11 to 13 thereof, which are reproduced hereunder for easy reference:

¶249

"11. In our opinion, having regard to the nature of controversy and keeping in view the averments made in the plaint coupled with the nature of the objections raised by the defendants in their applications, the proper course for the defendants is to file their respective written statements, if not so far filed, and raise all the pleas on facts and laws in their written statement in support of their contentions rather than to raise the pleas by

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¶251

taking recourse to the provisions of Order 7 Rule 11 of the Code. In other words, the pleas raised by the defendants in their applications under Order 7 Rule 11 ought to be raised in the written statement. Such pleas, in our view, do not fall within any of the clauses of Order 7 Rule 11 of the Code.

¶252

12. On such written statements being filed, the Trial Court will frame appropriate issues relating to facts and law arising out of the pleadings and try them as provided under Order 14 of the Code on their respective merits.

¶253

13. It is with these observations and liberty granted to the parties, we allow CAs @ SLP(c) Nos.31539-31540/2017 filed by the plaintiff and set aside the impugned order as also the order passed by the trial court."

¶254

4.17. He also relied upon a decision of this Court

¶255

in the case of SMT.PRAMEELS N W/O KRISHNA REDDY vs. MAHADEVAIAH

¶256

reported in 2017 (2) AKR 488 , more particularly paragraphs 21 and 22 thereof, which are reproduced hereunder for easy reference:

¶257

"21. Though the learned counsel for the respondent has strenuously contended that as the sale consideration amount has been paid by the

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first defendant when the site was granted under a Special rules i.e., Incentive Scheme for Voluntarily Surrender of Land Rules, 1989, I do not want to express any of my opinion so far as this aspect is concerned whether the plaintiff has become the exclusive owner of the said property because it would otherwise prejudice either of the parties. The court has to test this particular aspect after recording evidence because it is the plaintiff plea that the property is a joint family property which has been surrendered and in lieu of the said surrender, site has been granted by the Bengaluru Development Authority, therefore it is a joint family property. On the other hand, whether under the said scheme, irrespective of the fact of surrender of any joint family property, if the site is granted in favour of first defendant whether it becomes the exclusive property of defendant No.1 is also an issue that has to be thrashed out by the court after providing opportunity to both the parties.

¶260

22. Therefore, under the above said facts and circumstances of the case, I am of the opinion, that the Trial Court ought not to have disposed off the matter technically exercising powers under Order 7 Rule 11 (a) and (d) of CPC. Even after framing of the issues also, the court cannot decide these two points as a preliminary issue in view of the Division Bench decision of this Court reported in 2015 (3) KCCR 2754: (2015 (4) AKR 458) cited supra. Hence, the order passed by the Trial Court deserves to be set aside."

¶261

4.18. Relying on the above decision, he contends

¶262

that the issues raised in the present matter

¶263

by defendant No.4 - petitioner are such that

¶264

¶265

they cannot be even decided as preliminary issues and, therefore, no finding can be given when an application under Order VII Rule 11 of CPC is filed.

¶266

4.19. He further relied upon a decision of this Court in the case of H.VENKATASWAMY REDDY AND OTHERS vs. NARAYANNA REDDY AND OTHERS reported in 2017 (4) AKR 288 , more particularly paragraph 6 thereof, which is reproduced hereunder for easy reference:

¶267

"6. On the ground of suit in question being hit by Order II, Rule 2, CPC plaint cannot be rejected under Order VII, Rule 11(d), CPC and this view is fortified by the law laid down by Apex Court in the case of Vaish Aggarwal Panchayat vs. Inder Kumar and others, reported in AIR 2015 SC 3357 whereunder it has been held:

¶268

“16. After so stating, the Division Bench opined that in the facts of the said case, the suit could not be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a

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mixed question of fact and law and on ex facie reading of the plaint it could not be held that the suit was barred by time.

¶271

17. Coming to the case at hand we find that the allegations in the plaint are absolutely different. There is an assertion of fraud and collusion. There is an assertion that in the earlier suit a decree came to be passed because of fraud and collusion. In such a fact situation, in our considered opinion, the High Court has fallen into error by expressing the view that the plea of res judicata was obvious from the plaint. In fact, a finding has been recorded by the High Court accepting the plea taken in the written statement. In our view, in the obtaining factual matrix there should have been a trial with regard to all the issues framed.”

¶272

4.20. Based on the above decisions, Sri H.R.Anantha Krishna Murthy, learned counsel for respondent No.1 - plaintiff submits that there are no grounds made out for rejection of the plaint. All the aspects which have been raised by the petitioner - defendant No.4 are the issues touching upon

¶273

the matter where evidence would have to be led, trial conducted and thereafter, a finding has to be arrived at. All the aspects which

¶274

¶275

have been raised by defendant No.4 - petitioner cannot be agitated in an application filed under Order VII Rule 11 of CPC. He, therefore, submits that the order of the Trial Court is proper and correct and this Court's interference is not called for in the matter.

¶276

4.21. He submits that by the Karnataka Act 23 of 1994 Sections 6A and 6B and 6C have been inserted. By virtue of the said Act, a female Hindu was given coparcenary right in the joint family property. Though the Act received accent on 30.09.1994, it is applicable from the year 1990. Therefore, the plaintiff has a right as a member of the joint family, which right has been crystalised prior to the execution of the partition deed.

¶277

¶278

Mere execution of the partition deed would not come in the way of the rights of the plaintiff which will have to be determined during the trial.

¶279

Smt. Jayna Kothari, learned Senior Counsel appearing for the petitioner in rejoinder would submit that the said Act is not applicable to the present case, since admittedly the partition deed was executed on 01.06.1994, much prior to coming into force of the Amendment Act. Such amendment is not retrospective in nature but is prospective in nature.

¶280

5.1. In this regard, she relies upon a decision in the case of SMT.D.M.JAYAMMA vs. SMT. MUNIYAMMA AND OTHERS reported in (2000) 7 Kant LJ 522 , more particularly

¶281

¶282

paragraphs 28 and 29 thereof, which are reproduced hereunder for easy reference:

¶283

"28. In the present case, firstly sub-section (2) does not provide that this Karnataka Act 23 of 1994, will come into operation retrospectively, it provides that it has come into operation prospectively.

¶284

29. Further Section 2 of the Hindu Succession (Karnataka Amendment) Act, 1990, by which Section 6-A, Section 6-B and Section 6-C, have been inserted in the principal Act, namely, Hindu Succession Act, 1956, clearly revels and provides by use of expression 'the following sections shall be inserted', that is, amendment introduced thereby is prospective and these sections will operate prospectively and not retrospectively. In this view of the matter, in my opinion the Trial Court erred in law in applying Section 6-A to the present case as the succession had opened prior to coming into force of this Act, i.e., Hindu Succession (Karnataka Amendment) Act of 1990 which is described as Karnataka Act 23 of 1994."

¶285

5.2. Relying on the above decision, she submits that the State Act having come into force in the year 1994 after the Presidential assent, it would operate only thereafter and not retrospectively from 1990 when the said Act was introduced.

¶286

¶287

Heard Smt. Jayna Kothari, learned Senior Counsel for the petitioner and Sri Ananth Krishna Murthy, learned counsel for the respondent No.1. Perused the papers.

¶288

The points that would arise for determination are:

¶289

1. Whether the plaint can be rejected on the ground that partition was effected prior to 20th day of December, 2004?

¶290

2. Whether a female Hindu can claim for partition on a disruption of a joint family, post coming into force of the amendment to the Hindu Succession Act giving raise for rejection of the plaint if a suit was to be filed by her?

¶291

3. Whether a male coparcener having male children, on entering into a partition deed, the property so allocated to his share will become his exclusive share?

¶292

¶293

4. Whether the order passed by the Trial Court suffers from any legal infirmity requiring this court to interfere in the matter?

¶294

5. What order?

¶295

I answer the above points as under

¶296

ANSWER TO POINT NO.1: Whether the plaint can be rejected on the ground that partition was effected prior to 20th day of December, 2004?

¶297

9.1. In the present case as stated in paragraph 3 of the plaint filed in O.S. No.680/2008, even according to the plaintiff a partition has been effected on 1.6.1994 though by way of panchayat parikath.

¶298

9.2. This aspect of partition being effected by Panchayat parikath has been accepted by the plaintiff in the plaint itself though during the course of arguments in the present

¶299

¶300

petition, Sri.H.R.Anantha Krishnamurthy, learned counsel for respondent No.1-plaintiff contends that the partition is not registered and is not acted upon, I am unable to accept the said submission, more so when the plaint itself categorically states that the joint family properties were partitioned on 1.6.1994 and in the said partition, the 'B' Schedule properties were allotted to the share of defendant No.1, which is more particularly described in the plaint schedule, hereinafter referred to as 'Schedule properties'.

¶301

9.3. It is on that basis that it is stated that the plaintiff and defendant Nos.1 to 3 are in joint possession and enjoyment of the plaint schedule properties. The only allegation is that there is no partition amongst the

¶302

¶303

plaintiff and defendants Nos.1 to 3 and therefore defendants Nos.1 to 3 have no exclusive right over the plaint schedule properties since they are joint family properties, but the fact that partition having been effected is not in dispute.

¶304

9.4. The partition having been effected on 1.6.1994 has had the effect of partitioning the properties and the allotment of shares which is completed as on 1.6.1994.

¶305

9.5. The aspect of whether a partition deed is not proper since it is not registered and same cannot be considered cannot be a contention which can be advanced by the plaintiff when the plaintiff has admitted that the partition has indeed occurred.

¶306

¶307

9.6. It is not the allegation of the plaintiff that the partition deed dated 1.6.1994 is not binding on the plaintiff nor is the said partition challenged by the plaintiff in the present suit.

¶308

9.7. The reliefs sought for in the suit have been extracted hereinabove and the reliefs are only to the extent of dividing the property by way of partition and allocation of share to the plaintiff and to declare that the sale deed executed by defendants Nos.1 to 3 in favour of defendant No.4 is not binding on the plaintiff.

¶309

9.8. The partition is of the year 1994 that by itself has not been challenged by the plaintiff. When no challenge has been made and there is an admission made by the

¶310

¶311

plaintiff that indeed a partition deed has been executed, the mere contention that the said partition deed is not registered would not be sufficient for the plaintiff to claim a partition in the present suit.

¶312

9.9. The other contention urged by Sri.H.R.Anath Krishnamurthy, learned counsel for respondent No.1-plaintiff is that the plaintiff has a right on account of the Karnataka amendment to the Hindu Succession Act which came into effect in the year 1994, more particularly on 30.07.1994, which dates back to the year 1990. However, learned counsel for the petitioner relied upon the decision of this Court in Smt.

¶313

D.M.Jayamma vs. Smt. Muniyamma and

¶314

others reported in (2000) 7 Kant LJ 522 , more particularly paragraph 28 and 29 which

¶315

¶316

are reproduced hereunder for easy

reference:

9.10. Based on the above the Learned Senior Counsel contends that this Court has categorically held that the said Act would come into force from the year 1994 on 30.07.1994. If that be so, the partition having been effected on 1.6.1994, which is

¶321

¶322

prior to Karnataka Amendment coming into force, would also not enure to the benefit of the plaintiff.

¶323

9.11. Be that as it may, the Madras High Court has recently on 03.08.2021 in P Hemamalini Vs. K Palani Malai and Others in A S 687 of 2021 held that on coming into force of the amendment to Section 6 of the Hindu Succession Act by way of Central Amendment, the State amendment cannot be considered since the Central Amendment dates back to the date of the enactment. Thus even on this ground, the plaintiff cannot place reliance upon the State amendment.

¶324

9.12. Section 6 of the Hindu Succession Act, 1956 as amended reads as under:

¶325

¶326

“6 Devolution of interest in coparcenary property. —

¶327

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,— a) by birth become a coparcener in her own right in the same manner as the son;

¶328

b) have the same rights in the coparcenary property as she would have had if she had been a son;

¶329

c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

¶330

Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

¶331

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

¶332

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate

¶333

¶334

succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

¶335

a) the daughter is allotted the same share as is allotted to a son;

¶336

b) the share of the pre-deceased son or a predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; and

¶337

c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the predeceased son or a pre-deceased daughter, as the case may be.

¶338

Explanation. —For the purposes of this subsection, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

¶339

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the

¶340

¶341

Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—

¶342

a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

¶343

b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

¶344

Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.

¶345

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

¶346

Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]

¶347

9.13. Sub Clause (5) of Section 6 makes it clear that no right conferred under the

¶348

amendment would apply in the event of any

¶349

¶350

partition of the property on or before 20th day of December, 2004.

¶351

9.14. In the present case, the partition was effected on 1.6.1994. Such being the case, Sub Cluse (5) to Section 6 would come into operation and even on this account, the plaintiff cannot claim a right over the property.

¶352

9.15. When exfacie it can be seen that the plaintiff does not have a right to file a suit for partition since the very right which has been conferred by way of amendment to Section 6 of the Hindu Succession Act, does not enure to her benefit, in my considered opinion there would no purpose served in continuing

¶353

the suit and or for a trial to be held.

¶354

¶355

9.16. When on the basis of the averments made in

¶356

the plaint itself a suit appears to be barred or suit is barred by law, continuation of the said suit would be an abuse of process of Court and as such, in my considered opinion, a plaint, in that circumstances is required to be rejected since exfacie it is clear that the suit could not have been filed as the same is contrary to law.

¶357

9.17. I answer Point No.1 by holding that a plaint can be rejected on the ground that partition was effected prior to 20th day of December, 2004.

¶358

ANSWER TO Point NO.2: Whether a female Hindu can claim for partition on a disruption of a joint family, post coming into force of the amendment to the Hindu Succession Act giving raise for rejection of the plaint if a suit was to be filed by her?

¶359

¶360

10.1. Though consideration of this point would be

¶361

academic in view of the finding as regards Point No.1 since the arguments have been advanced on this point, the same is answered as under.

¶362

10.2. The contention of Sri. H.R.Ananth Krishnamurthy, learned Counsel for respondent No.1-plaintiff is that the property is a joint family property since the property has been acquired by the grandfather of the plaintiff and the partition which has occurred in the year 1994, not having been registered, the property continues to be joint family property and as such, respondent No.1-plaintiff has interest in the property.

¶363

10.3. I have already answered that the partition deed 1.6.1994 has been admitted by the

¶364

¶365

respondent No.1-plaintiff, hence the question of consideration of the right of the plaintiff dehors the partition deed would not arise.

¶366

10.4. If the right of the plaintiff has to be considered on account of the partition having already occurred in the year 1994, the contention of Sri.H.R.Anantha Krishnamurthy, learned Counsel for the respondent No.1-plaintiff is that the plaintiff has a right in the property allocated to her father since the property is a joint family property.

¶367

10.5. Smt.Jayna Kothari, learned Senior Counsel for the petitioner has relied upon the decision in Chandrasen's case followed by

¶368

¶369

the decision in Yudhishtir's case rendered by the Apex Court.

¶370

10.6. The Apex Court in both the decisions has come to a categorical conclusion that when a son inherits the property in a situation contemplated under Section 8, he takes the property in his own right and the said property cannot be considered to be joint family property .

¶371

10.7. If that be so, once the partition occurred in the year 1994, the property which devolved on defendant Nos.1 i.e. father of the plaintiff, was taken by him in his own individual capacity and did not form part of joint family property. There is a disruption of the joint family on the occurrence of partition in the year 1994.

¶372

¶373

10.8. In the present case, on the occurrence of partition, a share is allocated to the father of the plaintiff i.e. defendant No.1. The shares allotted to father was so allotted in his individual capacity and the disruption of the joint family was complete in the year 1994.

¶374

10.9. Once the joint family was disrupted and the property is allotted to the share of defendant Nos.1, it became his self acquired property and no longer continued to be a joint family property in terms of the decision of the Apex Court in Chandrasen and

¶375

Yudhishiter's case (supra).

¶376

10.10. This aspect has recently been considered by

¶377

the Apex Court in Uttam's case (supra) wherein the Apex Court has after analyzing the entire matter held that a conjoint

¶378

¶379

reading Section 4, 8 and 19 of the Act after the entire joint family property has been distributed in accordance with Section 8, the joint family property would cease to be a joint family property in the hands of various persons who have succeeded to it as they hold the property as tenants in common and joint tenants. Thus, this decision of the Apex Court also reinforces the claim of the petitioner herein and negates the claim of respondent No.1-plaintiff, in that there cannot be said to be joint family subsequent to the disruption in the family and allocation of shares in terms of Section 8 of the Act.

¶380

10.11. The decision relied upon by Sri.H.R.Anantha

¶381

Krishnamurthy in Shyamnarayan Prasad's

¶382

case would not apply to this case since that was a claim made by a son of a person who

¶383

¶384

was allotted a share in terms of Section 8 of the Act. However, even the sons of defendant No.2 cannot claim a share in the entire property dehors the partition which has occurred in the year 1994, as such the decision relied on Shyamnarayan Prasad's case by Sri.H.R.Anantha Krishnamurty would not be applicable in the present facts and circumstances.

¶385

10.12. In view of the above, a female Hindu cannot claim partition on disruption of the joint family post coming into force of the said Act from and out of the share of either her father or muchless on the entire property which has already been partitioned.

¶386

10.13. As regards the share of her father i.e., defendant No.1, the property having been

¶387

¶388

allocated to defendant No.1, defendant No.1 has sold his share along with the defendant Nos.2 and 3 who have also joined in execution of the sale deed in favour of defendant No.4. Thus, defendant No.1 having sold the property, the plaintiff cannot claim any right, title or interest in the said property which has already been sold in favour of a third party. In the event of the father not having sold the property, upon his death the daughter would have a right over the property allotted to her father along with her other siblings.

¶389

10.14. Thus I answer point No.2 by holding that a female Hindu cannot claim for partition on a disruption of a joint family, post coming into force of the amendment to the Hindu Succession Act

¶390

¶391

giving raise for rejection of the plaint if a suit was to be filed by her.

¶392

ANSWER TO POINT NO.3 : Whether a male coparcener having male children, on entering into a partition deed, the property so allocated to his share will become his exclusive share?

¶393

11.1. A perusal of the plaint in O.S. NO.680/2008 does not indicate or establish the claim of the petitioner as to how the property is a joint family property.

¶394

11.2. A mere statement in the plaint is not sufficient. A bald averment by itself cannot create a HUF unless it is specifically pleaded and demonstrated in the plaint that the Property is a Joint Family Property.

¶395

11.3. The Delhi High Court in Surender Kumar's

¶396

case (supra) has held that there has to be

¶397

¶398

a categorical statement in this regard and if categorical statements are not made that the Property is a Joint Family property, by demonstrating as to how it became a Joint family Property, the plaint can be rejected under Order VII Rule 11 of CPC.

¶399

11.4. In the present case, the only averment made is that the property was purchased by the grandfather of the plaintiff and upon the death of the grandfather, the property was partitioned amongst his sons of whom defendantNo.1 is one.

¶400

11.5. Apart therefrom a reading of the plaint does not indicate as to how the property has become a joint family property.

¶401

11.6. In fact in paragraphs 3 of the plaint, it is clearly stated that subsequent to the death

¶402

¶403

of the grandfather, the property had been partitioned between the children of plaintiff's grand father i.e., defendant No.1 and his brothers and the suit schedule property fell to the share of defendant No.1. It is on that basis it is contended that there being no partition between the plaintiff and defendant Nos.1 to 3, the property continued to be joint family property. This by itself would not suffice. There is no explanation as to how the property is joint family property.

¶404

11.7. The Apex Court in Banwar Singh's case

¶405

(supra) has held that once a partition has occurred and property has fallen to the share of one of the members of the family, such member of the family had the requisite right to transfer the land fallen to his share.

¶406

¶407

11.8. In the present case, property on partition in

¶408

the year 1994 fell to the share of defendant No.1 and it is defendant No.1 who has sold the property. There is no embargo on defendant No.1 to sell the property falling to his share which has been recognised by the

¶409

Apex Court in Banwar Singh's case (supra). Hence, on this ground also the claim of the plaintiff that she is entitled to a partition is not sustainable since it is the property belonging to defendant No.1 which has been sold.

¶410

11.9. Sri.H.R.Ananth Krishnamurthy, learned counsel for respondent No.1-plaintiff by relying on Mayar's case (supra) has contended that whether a plaint discloses a cause of action is a question of fact which has to be gathered by the averments made

¶411

¶412

in the plaint and not by considering the allegations made in the written statement. There is no quarrel with the said proposition. In the present case, it is not just the existence of the cause of action, but the question of plaint itself being barred by law which is being considered.

¶413

11.10. Partition being admitted and the property falling to the share of defendant No.1 being admitted, the plaint is barred by law and not that there is no cause of action.

¶414

11.11. Decision relied upon the learned counsel for respondent No.1-plaintiff in Venkatswamy Reddy's case (supra) is not applicable since in the said matter, what was considered was the suit being barred by limitation and there being an assertion that

¶415

¶416

the decree in earlier suit has been passed because of fraud and collusion. Those two contentions are not applicable in the present case. Hence, I am of the considered opinion that the said decision is also not applicable.

¶417

11.12. As referred to and adverted to above in view of the decision of the Hon’ble Apex Court in Chandrasen's case followed by Yudhistir and Uttam’s case, it is clear that the property which fell to the share of defendant No.1 on a partition in the year 1994 became his own self-acquired property in his hands.

¶418

11.13. Once the said property becomes the exclusive property of defendant No.1, the question of the plaintiff claiming any right as a joint family property would not at all arise. The decision in Chandrasen and

¶419

¶420

Yudhistir’s case has also been reiterated by this Court in Shakunthala’s case (supra) which has been extracted herein above, wherein this Court has categorically held that once a property is devolved on a Hindu under Section 8 of the Hindu Succession Act, it would not be a HUF property in his hand vis-à-vis his son. The deeming fiction of the plaintiff being declared as a coparcener on account of the amendment cannot exceed the right of a son who is a coparcener under the Customary Hindu Law. Both the son and the daughter would have to be treated equally. Hence, when a son would not have a right to claim over the property of the father who was allocated a share in the said partition, the daughter cannot also claim such a right, since the defendant No.1-

¶421

¶422

father did not take it as kartha of his own undivided family but has taken it in his own individual capacity.

¶423

11.14. The Madhya Pradesh High Court by referring to the decisions in Chandrasen as also Uttam’s case has applied the very same proposition and held that during the lifetime of the father, who has been allocated a share under a partition, the son cannot claim a right in the property. Thus, defendant No.1 being alive, the plaintiff – daughter cannot claim a right over the said property. These aspect has also been reiterated recently by the Hon’ble Apex Court in Vineetha Sharma’s case wherein the Hon’ble Apex Court has clearly and categorically held that any right claimed by a Hindu women after

¶424

¶425

the amendment is subject to disposition, alienation partition or testamentary disposition which has taken place before 20^th December 2004.

¶426

11.15. In the present case, partition having occurred on 01.06.1994 before the said date and the said partition having been given effect to, having been admitted by the plaintiff the plaintiff is estopped from contending otherwise.

¶427

11.16. Though Sri.H.R.Anantha Krishnamurthy has contended that the said partition is not a registered partition, the Hon’ble Apex Court in Vineetha Sharma’s case has categorically held that even if there is a oral partition, if the same is admitted and/or evidenced by any supporting public

¶428

¶429

document, the same would be sufficient to establish the partition. In the present case, there would be no requirement to refer to any public document when there is a clear and categorical admission made by the plaintiff in para 3 of the plaint. Thus, when a male coparcener having male children has succeeded to a property upon a partition, the said property would become his exclusive share and none including a son or a daughter like respondent No.1 – plaintiff herein could claim a share in the same during the lifetime of the father.

¶430

11.17. Hence, following the decision of the Hon’ble Apex Court in Chander Sen’s case, Yudhister’s case , Banwar Singh's case and Shakunthala’s case of this Court, I answer Point No.3 by holding that on a

¶431

¶432

partition having occurred and properties so allocated in male co-parcener having male children receives the property allocated to him in his individual capacity with full right of dispossession. It is only upon his death that his children will succeed to his estate.

¶433

ANSWER TO POINT NO.4: Whether the order passed by the Trial Court suffers from any legal infirmity requiring this court to interfere in the matter?

¶434

12.1. I have answered point Nos.1 to 4 earlier as regards the legal position. The Trial Court vide the impugned order, has dismissed the application of the petitioner only on the ground that the decision relied upon by the petitioner in Chandrasen’s case, Yudhishtir’s case and other cases relied upon by the petitioner was rendered by the

¶435

¶436

Hon’ble Apex Court at the time of giving findings on the appeals challenging the judgment passed by the lower courts. Thus, the Trial Court came to the conclusion that since the said judgments were not rendered while considering the application for rejection of the plaint, such judgments could not be considered. Such a finding of the Trial Court in my considered opinion is completely unsustainable. When judgments are rendered by the Hon’ble Apex Court or by this Court after the appeal is filed challenging the judgment, the Hon’ble Apex Court or this Court would be laying down the law on the matter.

¶437

12.2. When there is an exposition on law made by

¶438

the Hon’ble Apex Court or by this Court, the

¶439

¶440

said exposition would be binding on the Trial Court and the principle of law laid down would be required to be followed by the Trial Court and cannot be negated or refused to be followed solely on the ground that the same was not rendered on an application under Order 7 Rule 11 but was rendered in a Regular First Appeal or in a Special Leave Petition.

¶441

12.3. The principles of law laid down would have to be applied while considering an application under Order 7 Rule 11 of CPC also and if the principles of law laid down would require an application under Order 7 Rule 11 to be allowed, the said application would have to be allowed. If the principle of law laid down would negate the application

¶442

¶443

requiring the application to be dismissed, the trial Court would have to dismiss the same.

¶444

12.4. The trial Court cannot ignore the law laid down by the Hon’ble Apex Court or by this Court for the aforesaid reason.

¶445

12.5. The trial Court has also refused to consider the decision of the Madhya Pradesh High Court in Vikram Singh’s case on the ground that the said judgment is not reported in any Law journal. It is very unfortunate that the Trial Court has taken such a stand. The judgment of a Court does not become a judgment only for the reason that the same is reported in any journal. The judgment of this court or that of the Madhya Pradesh Court or any other Court would continue to be a judgment of the Court

¶446

¶447

irrespective of whether it is reported in a Law journal or not.

¶448

12.6. Any party to a proceeding during the course of his arguments can rely upon any judgment pronounced so long as a copy thereof is produced before the Court, it is not required that it is only a Journal publication which has to be relied upon by any Court. Such being the case, the Trial Court having refused to refer to any of the decisions relied upon by the petitioner– defendant No.4 is completely misconceived.

¶449

12.7. This act on part of the Trial Court makes the order passed by the Trial Court to suffer from severe legal infirmities which requires this Court to intercede in the matter.

¶450

¶451

12.8. The Trial Court by not referring to and or relying of the said judgments merely by stating that in various judgments of the High Courts and the Hon’ble Apex Court, the plaintiff has to be given an opportunity to give her evidence to prove that she is claiming partition under Section 6 of the Hindu Succession Act and the Court cannot reject the plaint only on the allegations made that the suit is not maintainable under

¶452

Section 6 of the Act is again misconceived.

¶453

12.9. The Trial Court has not referred to any such decision rendered by any High Court or the Hon’ble Apex Court which the Trial Court has purportedly relied upon without any basis for such a statement made which has resulted in the order being passed. Thus, the

¶454

¶455

impugned order suffers from legal infirmity on this ground also.

¶456

12.10. In view of the same, both the petitioner and respondent No.1 during the course of arguments in the present petition having adverted to various decisions of the Hon’ble Apex Court, this Court and the other High Courts have been dealt with extensively by me in the present order and all the aspects relating thereto have been considered and point Nos.1 to 4 are answered by me.

¶457

12.11. In view of the answer to point Nos.1 to 4 wherein I have categorically held that once a partition is admitted prior to coming into force of the amendment and under the partition, properties have been allocated to the father – defendant No.1, the father

¶458

¶459

would take the property in his own individual capacity. There being a disruption of the joint family property, the property is allocated to defendant No.1 who has taken it as his own separate and/or individual property, it is not for the plaintiff who is a sister of the defendant Nos.2 and 3 and daughter of defendant No.1 to claim any right therein.

¶460

12.12. This being also on account of sub cluse (5)

¶461

of Section 6 of the amended Section 6 of the Hindu Succession Act wherein it is categorically stated that if there is a partition which has occurred prior to 20^th December, 2004, then no rights would accrue on account of the amendment to a Hindu women. Admittedly, there being partition which has occurred prior to coming into

¶462

¶463

force of the amendment and the contention of Sri.H.R.Anantha Krishnamurthy that the said partition has not been registered and being rejected by me by relying upon the decision of the Hon’ble Apex Court in Vineetha Sharma’s case, I am of the considered opinion that there being admission on the part of the plaintiff that there is partition, there would be no requirement for any further evidence to be led in the matter giving an opportunity to establish her claim under Section 6 of the Hindu Succession Act and to hold that in view of the partition, Section 8 of the Act would come into operation.

¶464

12.13. The Hon’ble Apex Court in several decisions

¶465

has categorically held that once a partition occurs, if the property is allocated, the

¶466

¶467

devolution would be under Section 8 of the Hindu Succession Act and once the devolution occurs under Section 8 of the Act, the question of applicability of Section 6 would not at all arise.

¶468

12.14. In the present case, the property having been allocated to defendant No.1 and he having sold the property to defendant No.4, it cannot be said that the plaintiff has any right over the property.

¶469

12.15. Hence, I answer point No.5 by holding that the order passed by the Trial Court is not appropriate and requires interference.

¶470

13. What Order?

¶471

¶472

13.1. The impugned order dated 10.03.2021

¶473

passed by the Senior Civil Judge and JMFC at Devanahalli in O.S.No.680/2008 is set aside.

¶474

13.2. Consequently, I.A.No.11 filed by the defendant No.4 under Order 7 Rule 11[a] and [d] read with Order 12 Rule 6 read with Section 151 of CPC is allowed.

¶475

13.3. The plaint in O.S.No.680/2008 stands rejected.

¶476

Sd/JUDGE

¶477

Ln/Jm/-

Koshy Abraham v. Smt B K Jayalakshmi

Case brief

What is this about?

What did the court decide?

Koshy Abraham v. Smt B K Jayalakshmi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Coram

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