Plaintiffs' suit for partition and declaration that a 1993 sale deed by their father was not binding on their shares had been rejected under Order 7 Rule 11 CPC based on the saving proviso to Section 6 of the Hindu Succession Act (Amendment), 2005 for alienations before 20.12.2004. The High Court upheld both courts and dismissed the appeal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 989 OF 2018 (PAR)
BETWEEN:
Digitally signed by SUMA B N Location: High Court of Karnataka
(BY SMT. M. R. SHALAMALA, ADVOCATE)
…APPELLANTS
AND:
…RESPONDENTS
(BY SRI.PRAVEEN HEGDE, ADVOCATE FOR R4; NOTICE TO R1 TO R3 DISPENSED WITH, (V/O. DATED 21.10.2019))
THIS RSA IS FILED UNDER SEC.100 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DTD 31.10.2017 PASSED IN RA.NO.100/2014, ON THE FILE OF THE IX ADDL. DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL, DISTRICT BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 24.06.2014 PASSED ON IA NO.3 IN OS.NO.78/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., NELAMANGALA ALLOWING IA NO.3 FILED
NC: 2024:KHC:5786 RSA No. 989 of 2018
UNDER ORDER 7 RULE 11[a][b] and [d] R/W.SEC.151 OF CPC FOR REJECTION OF PLAINT.
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs are before this Court being aggrieved by the order dated 24.06.2014 passed in O.S.No.78/2012
on the file of the Senior Civil Judge and JMFC, Nelamangala on an application filed by defendant No.4 under Order 7 Rule 11 (a), (b) and (d) read with Section 151 of CPC allowing the said application and rejecting the suit of the plaintiffs which is confirmed by order dated 31.10.2017 passed in R.A.No.100/2014 on the file of IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru.
NC: 2024:KHC:5786 RSA No. 989 of 2018
defendant No.4 as not binding on the plaintiffs to the extent of their legitimate shares.
NC: 2024:KHC:5786 RSA No. 989 of 2018
and only then the matter has to be adjudicated and the plaint cannot be summarily rejected.
plaintiffs were not party to the said deed of sale as such the deed of sale was not binding on them. However, he fairly submits that in view of the Proviso to Section 6 of the Hindu Succession Act (Amendment), 2005 alienation of this kind is saved. Yet he submits that since limitation being the mixed question of fact and law, the trial Court and First Appellate Court ought to have given an opportunity to plaintiffs to lead evidence and contest the suit and thereafter should have passed the necessary orders. As such, he submits that substantial question of law arises for consideration.
sold by late Ramaiah, the father of the plaintiffs and defendant Nos.1 to 3 in favour of husband of defendant No.4 in terms of deed of sale dated 04.03.1993. Defendant Nos.1 to 3 were also witnesses to the said sale deed. It is also not in dispute that plaintiffs and defendant Nos.1 to 3 were major in age at the time of execution of
NC: 2024:KHC:5786 RSA No. 989 of 2018
sale deed. Thus the plaintiffs and defendants were having the knowledge of the said sale deed. Notwithstanding the same in view of the Proviso to sub-section(1) of Section 6 of the Hindu Succession Act, 2005, the alienation of this nature which has taken place prior to 20th December 2004 is saved by virtue of the statute. As such no substantial question of law would arise for consideration in this appeal and no irregularity can be found with the reasoning and conclusion arrived at by the trial Court and First Appellate
Court. The appeal is therefore, dismissed .
Sd/JUDGE
NS CT:TSM List No.: 2 Sl No.: 3
2 issues framed by the court
Whether a suit for partition challenging a pre-2004 sale deed is barred by the proviso to Section 6(1) of the Hindu Succession Act (Amendment), 2005.
Whether the plaint could be summarily rejected under Order 7 Rule 11 CPC when limitation was urged as a mixed question of law and fact.
3 provisions across 2 enactments
Smt. R. Lalitha
Smt. Jayalakshmi
Sri. Hanumantharaju
Sri. Venkatesh
Smt. Lakshmamma
Smt. R. Manjula
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
