M/S Fern Builders & Developers Vs Ms. Prathibha D

THIS CRP IS FILED UNDER SEC.115 OF CPC AGAINST THE ORDER DATED 29.07.2019 PASSED ON IA NO.1/2019 IN O.S.NO.7952/2013 ON THE FILE OF THE XV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU DISMISSING THE IA NO.1/19 FILED UNDER ORDER 7 RULE 11(a)(b) AND (d) OF CPC FOR REJECTION OF PLAINT.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 04.02.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE R DEVDAS

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CAV ORDER

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(PER: HON'BLE MR JUSTICE R DEVDAS)

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This Civil Revision Petition is filed by defendant No.5

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in the suit, being aggrieved of the rejection of its interlocutory application filed under Order VII Rule 11(a)(b) & (d) of CPC.

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For the sake of convenience, the parties shall

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be referred to in terms of their ranking before the trial court.

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The suit is filed by the plaintiffs seeking a declaration that the sale deed 01.08.2003 executed by

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defendants No.1 to 4 in favour of defendant No.5 in respect of the suit schedule property is null and void and not binding on the plaintiffs. Prayer is also sought for effecting partition of the suit schedule property and allotment of their legitimate shares in favour of the plaintiffs. The suit is filed in the year 2013. Defendant No.5 filed an application seeking rejection of the plaint on the ground that the suit is not properly valued, since admittedly defendant No.5 is in possession of the suit schedule property and the plaintiffs have not sought for relief of possession. Secondly, since admittedly the grandfather of the plaintiffs, late Sri Chikkanna acquired the suit schedule property under registered Partition Deed dated 06.09.1966 and he, along with his sons executed the sale deed on 01.08.2003, in favour of defendant No.5, the sale made by the plaintiffs fathers and grandfather cannot be questioned by the plaintiffs. Thirdly, the suit is barred by limitation, since the suit is filed 10 years after the sale transaction.

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Learned counsel for the defendant No.5 submits

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that defendant No.1 is the father of plaintiffs No.1 to 3 and

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defendant No.3 is the father of plaintiffs No.4 and 5. Defendants No.2 and 4 are the brothers of defendants No.1 and 3 and they are the uncles of the plaintiffs. Admittedly, during the life time of Sri Chikkanna, the grandfather of the plaintiffs, along with all his children and his two brother Venkatappa and Subbanna have jointly executed the sale deed in favour of defendant No.5, thereby transferring all the rights, in favour of defendant No.5. Moreover, the sale deed was executed on 01.08.2003, prior to the Hindu Succession (Amendment) Act, 2005 (for short “The Act”) and therefore plaintiff No.1, the daughter of defendant No.1 cannot seek to invalidate an alienation which took place before the 20^th day of December, 2004. Insofar as other plaintiffs are concerned, learned counsel submitted that the plaintiffs have not stated anything in the plaint to satisfy their belated claim. It is simply stated in the plaint that the plaintiffs were not aware of the sale transaction and when they found defendants No.5 and 6 on the suit schedule

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property trying to develop the property, when they questioned defendants No.5 and 6, they were told about

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the sale transaction. Plaintiffs No.1 to 4 gave an evasive reply that they had not sold the property, but they had entered into a Joint Development Agreement. However, it is submitted that the Sale Deed is a registered instrument and therefore the same is presumed to be to the knowledge of the entire world.

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Learned counsel has placed reliance on M.R.Vinoda /vs./ M.S.Susheelamma - (2021) 20

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SCC 180, where it was held that a Karta of a joint Hindu family can dispose of joint family property involving the undivided interest of a minor. That being the position, a coparcener cannot seek an injunction restraining the Karta from alienating the joint Hindu family property. A Karta

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can alienate the property when other coparcener had given consent. It is pointed out from the family tree that during the lift time of Sri Chikkanna, the grandfather of the plaintiffs, he along with his brothers Ramaiah, Venkatappa and Subbanna, along with all the children of

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Sri Chikkanna, have joined him in disposing of the suit schedule property. Therefore, the plaintiffs cannot claim that the sale deed executed by Sri Chikkanna, his brothers and his children is a void document.

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Learned counsel would also place reliance on Shub Karan Bubna /vs./Sita Saran Bubna and others -(2009) 9 SCC 689 , where it was held that “partition” is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. It is therefore contended that since during the lifetime of Sri Chikkanna, the grand father of the plaintiffs, the suit schedule property was disposed of at the hands of Sri Chikkanna and his sons and grandsons, the joint ownership was terminated and the respective shares, in terms of money, vested with each of the branch

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in severalty and nothing more survived for further partition.

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Per contra, learned counsel for the plaintiffs placed reliance on Kuldeep Singh Pathania /vs./ Bikram Singh Jaryal – (2017) 5 SCC 345 , while contending that it is settled position of law that while considering an application under VII Rule 11, court is required to consider the averments made in the plaint alone and not to look into the written statement. 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. A cause of action being 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, willful default, undue influence or of the same nature, unless evidence is recorded, court cannot reject the plaint. So long as the plaint discloses some cause of action which requires

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determination by the court, the mere fact that in the opinion of the judge the plaintiff may not succeed cannot

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be a ground for rejection of the plaint. Reliance was also placed on Urvashiben and another /vs./ Krishnakanth Manuprasad Trivedi - (2019) 13 SCC 372 , where it was held that merits and demerits of the matter cannot be gone into at the stage when an application under Order VII Rule 11 is being considered. It is fairly well settled that at this stage only averments in the plaint have to be looked into and from a reading of the averments in the plaint, it cannot be said that the suit is barred by limitation.

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Heard the learned counsels for the defendants

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and the plaintiffs and perused the petition papers.

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It is clear from the averments made in the

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plaint and the prayer made therein that the plaintiffs are seeking partition and separate possession of their respective shares in the suit schedule property and that they are seeking a declaration that sale deed dated 01.08.2003 executed by the plaintiffs father, uncles and the plaintiffs grandfather is null and void and not binding

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on the plaintiffs. Copy of the sale deed is produced by the plaintiffs along with the plaint. Admittedly, various other

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joint family properties were sold under the said sale deed. But, the plaintiffs are not seeking a partition in those properties and are not seeking such a declaration. The suit which was filed against defendant No.6 - M/s. Rohan Builders, who are developing the property, has been dismissed, at the instance of the plaintiffs. This would mean that defendant No.6 is permitted to proceed with the development of the suit schedule property. These facts would become relevant in the light of the contentions raised by defendant No.5, who purchased the suit schedule property in the year 2003. The suit schedule property was converted from agricultural to nonagricultural purposes in the year 2002, before it was sold to defendant No.5. The suit is filed in the year 2013 while contending that the plaintiffs were not aware of the sale made in the year 2003. Plaintiffs are aged between 22 years to 30 years when the property was sold.

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Insofar as plaintiff No.1 is concerned, it is a clear case of there being no cause of action to file the suit seeking partition. As rightly contended by the learned counsel for the defendant No.5, plaintiff No.1 who is a daughter claiming coparcenery rights, is barred from seeking to re-open or question an alienation that was made prior to 20^th day of December, 2004, in terms of the proviso to Section 6 of the Hindu Succession (Amendment) Act, 2005.

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Insofar as the other plaintiffs are concerned, it would be relevant to notice a decision of a Apex Court in the case of Sri Narayan Bal and others /vs./ Sridhar Sutar and others (1996) 8 SCC 54, where it was held that for the first time in the Special Leave Petition, the competence of the Karta of the Hindu joint family, effecting sale of the undivided interest of the minors in the joint Hindu family property was questioned on the anvil of Section 8 of the Hindu Minority and Guardianship Act, 1956. The Apex Court, while considering the question whether the provisions of Section 8 of the Act, 1956 were

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applicable to the joint Hindu family property sold or disposed of by the Karta, held as follows:

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“5 . With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need to be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the joint Hindu family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable

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property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered.”

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The Apex Court further proceed to hold that

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since the eldest member of the family acted as a Karta in executing the sale deed and he was joined by the two widows for themselves and as guardians of the minor members of the joint Hindu family, as supporting executants, that act by itself is not indicative of the minors having a divided interest in the joint Hindu family property commencing before or at the time of the sale. In that view of the matter, it was held that Section 8 of the Act can be

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of no avail to the appellants claim to nullify the sale. The appeal was accordingly dismissed.

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It is also relevant to notice that in M.R.Vinoda (supra) , the decision cited by the learned counsel for defendant No.5, the Apex Court has held that a Karta can alienate the property when other coparceners have given consent. It is also settled that a Karta may alienate the joint family property for value, either for legal necessity or for the benefit of the estate, to bind the interests of all the undivided members of the family, whether they are adults or minors or widows. A Karta has wide discretion in the decision over the existence of legal necessity and as to in what way such legal necessity can be fulfilled. However, it was also held that the exercise of power and rights of Karta is not beyond challenge on the limited ground of lack of existence of legal necessity or absence of benefit to the estate.

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In this regard, when we peruse the plaint averments, this Court finds no such contention that there was no legal necessity to sell the property. It is only

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contended that defendants No.1 to 4 were addicted to alcohol and they were without any worldly knowledge. It is contended that defendant No.5, taking advantage of the situation, got the sale deed executed, while also contending that the sale deed itself is fabricated, concocted and a self styled document.

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Having analyzed these averments made in the plaint and having regard to the two judgments of the Apex Court, in the case of Sri Narayan Bal and M.R.Vinoda (Supra) , this Court is of the considered opinion that the plaint is required to be rejected on the ground that the plaintiffs lack cause of action. This view is further fortified by the fact that the plaintiffs are not seeking partition in respect of the other joint family properties which were also disposed of by two generations/forefathers of the plaintiffs

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under the registered sale deed dated 01.08.2003. The contention of defendant No.5, having regard to the dismissal of the suit as against defendant No.6, further strengthens this view, that the plaintiffs are only seeking to harass defendant No.5 and are seeking to extract

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money by filing the suit, ten years after the sale transaction.

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Consequently, the Civil Revision Petition is allowed . The plaint in O.S.No.7952/2013 on the file of XV Additional City Civil and Sessions Judge, Bengaluru, stands rejected.

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Ordered accordingly.

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Sd/(R DEVDAS) JUDGE

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KLY CT: JL

M/S Fern Builders & Developers v. Ms. Prathibha D

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M/S Fern Builders & Developers v. Ms. Prathibha D

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