Smt Vijaya Gopinath Vs Rajendra Savanur

SMT. BHARATHI BALAKRISHNA W/O K.BALAKRISHNA AGED ABOUT 65 YEARS, R/AT FLAT NO.404, 4^TH FLOOR EMINANCE GARDENIA, VIJAYANAGAR 4^TH STAGE, VIJAYANAGAR, BOGADI LINK ROAD MYSURU - 570 017.

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...APPELLANTS

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(BY SRI SRINIVASA MURTHY S.R., ADV.)

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AND:

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RAJENDRA SAVANUR S/O LATE B.B.SAVANUR AGED ABOUT 62 YEARS R/AT NO.330, 11^TH CROSS

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MAHALAKSHMI LAYOUT BENGALURU - 560 086.

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AND ALSO R/AT: ARGE URBAN BLOOM NEXT TO MODERN BREAD FACTORY NO.30/A C-402, (LOTUS) 4^TH FLOOR INDUSTRIAL SUBURB YESHWANTHPUR BENGALURU - 560 072.

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K.MANJU DEEPAK S/O K. KRISHNAMURTHY AGED ABOUT 41 YEARS R/AT NO.165/2 MANJUNATHA ROAD T.R.NAGAR, BENGALURU - 560 028.

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...RESPONDENTS

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(BY SRI RAVI PRAKASH V., ADV. FOR R1; SRI T.P. VIVEKANANDA, ADV. FOR R2)

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THIS RFA IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE ORDER DATED 02.01.2024, PASSED ON IA NO.2 IN OS NO.316/2023 ON THE FILE OF X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-26) ALLOWING THE IA NO.2 FILED U/O VII RULE 11(A) & (D) OF CPC FOR REJECTION OF PLAINT.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.10.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV JUDGMENT

(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

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This Regular First Appeal is filed aggrieved by the Order on I.A.No.II passed by the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) ('trial Court' for short) dated 02.01.2024 in O.S.No.316/2023.

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We have heard Shri. Srinivasa Murthy S.R, learned counsel appearing for the appellants, Shri. Ravi Prakash V, learned counsel appearing for respondent No.1 and Shri. T.P Vivekananda, learned counsel appearing for respondent No.2.

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The father of plaintiffs/appellants and defendant No.1/respondent No.1-Late Shri. B.B Savanur, was allotted constructed house/suit schedule property by the Mysore Housing Board (now the Karnataka Housing Board) for a consideration of Rs.19,143/- and was given possession vide Possession Certificate dated 08.05.1969. Upon his demise, the property's Khata was transferred to his wife and following her death on 12.03.1995, the plaintiffs and

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defendant No.1 became the sole surviving legal heirs of the property.

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A Release Deed was executed on 07.12.1995 by Srikanth B Savanur (brother of defendant No.1) in favour of defendant No.1, transferring his rights over the suit schedule property. The document was duly registered with the plaintiffs signing as consenting witnesses. Defendant No.1 transferred the Khata of the property to his name and began enjoying it as the absolute owner. Although defendant No.1 claimed ownership under the Release Deed, there was an understanding that he would compensate the plaintiffs for their share in the property. Despite repeated requests, defendant No.1 failed to pay their share and continued to evade the issue. Defendant No.1, without the knowledge of the plaintiffs, sold the suit schedule property to defendant No.2 on 10.11.2022 for a sum of Rs.1,10,00,000/- though the actual market value exceeded Rs.2,60,00,000/-. The plaintiffs demanded their 1/3^rd share of the sale consideration and defendant No.1 refused to comply. Aggrieved by the same, the plaintiffs approached the trial

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Court by filing a suit for partition, separate possession and for declaration with regard to release deed dated 07.12.1995 and sale deed dated 10.01.2022.

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Defendant No.1 filed I.A.No.II under Order VII

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Rule 11(a) and (d) for rejection of the plaint. It was the contention of the defendant No.1 that the suit was filed after an inordinate delay of 27 years from the execution of the release deed and is hopelessly barred by limitation. The release deed is a 'Deed of Conveyance' under Section 6(1) of the Hindu Succession Act, 1956 and that any alienation made prior to 20.12.2004 cannot be challenged in a partition suit. It was further contended that as the plaintiffs themselves were witnesses to the release deed and had full knowledge of its execution, their challenge after 27 years is untenable, barred by limitation and the suit requires to be rejected.

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The plaintiffs contended that the Release Deed was obtained by false promise and coercion, making the plaintiffs to sign the deed under misrepresentation. It was alleged that defendant No.1 misused their signatures given

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as consenting witnesses to wrongfully deprive them of their share in the property. It was further contended that the legality or validity of the transaction cannot be determined at the preliminary stage without adducing evidence. It was emphasized that while considering an interlocutory application of this nature; only the plaint averments should be examined and not the defendant's defence.

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The trial Court allowed I.A.No.II and held that since the plaintiffs were parties to the release deed had full knowledge of its execution and had signed it with their consent, the suit after a lapse of 27 years was clearly barred by limitation and barred under the amended provisions of the Hindu Succession Act, 2005.

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The learned counsel appearing for the appellants contends that the trial Court failed to consider the legal principles established in the precedents cited by the appellants. The cause of action stated in the plaint must be examined and tried during the trial and cannot be dismissed at the preliminary stage. The trial Court overlooked this

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aspect while allowing the interlocutory application filed by defendant No.1. It is further submitted that the issue of delay and limitation should be determined based on evidence during the trial, not at the pre-trial stage. The trial Court erred in concluding that the suit lacked a valid cause of action. It was emphasized that limitation and the existence of a cause of action are matters that require detailed examination during trial, and therefore, the rejection of the plaint on these grounds was contrary to law.

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It is further contended that they had sought annulment of the release deed and partition of the suit property, as the deed was allegedly obtained by respondent No.1 through fraud to deprive them of their rightful share. It was argued before the trial Court that this issue required a detailed examination during trial but was not properly considered by the trial Court while passing the impugned order. The trial Court erred in applying Section 6 of the amended Hindu Succession Act, by holding that any disposition of property prior to 20.12.2004 could not be challenged. The trial Court failed to analyze the scope and

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applicability of the amendment which could not be determined without a full-trial. The rejection of a plaint should be exercised only after examining the rights and obligations of the parties, which the trial Court failed to, do so. In partition suits, limitation is generally not a bar, but

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this principle was overlooked. It is submitted that the impugned order suffers from legal infirmities, reflects a misapplication of law, lacks proper reasoning and has unjustly deprived them of the opportunity to establish their rights over the property.

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The learned counsel appearing for the appellants places reliance on the judgment of the Apex Court in the case of Daliben Valjibhai and Ors v. Prajapati Kodarbhai Kachrabhai and Anr reported in 2024 INSC 1049, where the Court reaffirmed the principles in the case of P.V. Guru Raj Reddy v. P. Neeradha Reddy reported in (2015) 8 SCC 331. The Apex Court held while considering an application under Order VII Rule 11 of the Code of Civil Procedure, only the averments in the plaint must be examined to determine whether it discloses a cause

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of action or is barred by law. The defendant's stand or written statement is irrelevant at this stage, unless the plaint on its face fails to disclose a cause of action or is barred by any law, it cannot be rejected and all other issues must be adjudicated during trial. In Chhotanben v. Kirtibhai Jalkrushnabhai Thankkar reported in (2018) 6 SCC 422, the Apex Court held that where a triable issue is raised, the plaint cannot be rejected at the threshold under Order VII Rule 11(d) of the Code of Civil Procedure.

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The learned counsel appearing for the

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respondents, on the other hand, contends that it was on considering the plaint averments itself that the plaint came to be rejected. It is submitted that it was the specific averment in the plaint that a Release Deed was executed on 07.12.1995 in favour of defendant No.1 and that the plaintiffs are the consenting witnesses to the said document. It is submitted that thereafter, defendant No.1 was enjoying the property as the sole and absolute owner and the appellants were perfectly well aware of the said fact. It is submitted that since the suit was filed seeking a declaration

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that the Release Deed dated 07.12.1995 is not binding on the appellants. The trial Court was fully justified in holding that the suit was hopelessly barred by limitation. It is further contended that the Release Deed was not acted upon and that the plaintiffs were assured that they would be paid the value of the suit schedule property, is only a clever pleading on the part of the plaintiffs. It is submitted that the findings of the Court at the first instance are perfectly legal and valid.

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We have considered the contentions advanced. The plaint allegations were specifically as under:-

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"3. The plaintiffs further submits that, on 07.12.1995 a release deed/disclaimer had been executed between the brother of the first defendant executed by Srikanth B Savnur in favour of the first defendant and the said documents was registered in the office of the sub registrar, Rajajinagar, Bengaluru for the said documents the plaintiffs are the consenting witnesses. Thereby the first defendant claims to be the absolute owner in possession and enjoyment of the suit schedule property. The release dated 07.12.1995 is produced at Annexure-A.

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4. The plaintiffs further submits that, After the demise of the father and mother of the plaintiffs and first defendant, the first defendant got the katha of the

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schedule property in his name basing on the instrument at Annexure-A and enjoyed the schedule property and absolute owner B.B Savanur succeeded to the deceased estate along with the plaintiff and first defendant. After demise of the plaintiffs and first defendant father and mother, the release dated 07.12.1995 was not acted upon by the first defendant, with a confidence that the first defendant shall pay the value of the suit schedule property on the guise the plaintiffs are the consenting witness for the release deed at Annexure-A."

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The Release Deed dated 07.12.1995 as well as the Sale Deed dated 10.11.2022 were produced as documents along with the plaint. It is, therefore, an admitted fact that the plaintiffs were consenting witnesses to the Release Deed dated 07.12.1995. We notice from the order under appeal that the trial Court has considered the pleadings in the plaint as well as the recitals in the Release Deed and came to the conclusion that the plaintiffs were perfectly well aware of the execution of the Release Deed and the declaratory relief as sought for by them with regard to the Release Deed which was executed in the year 1995 was hopelessly time-barred. Further, it is clear that after the execution of the Release Deed, the property was

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mutated in the name of defendant No.1, which is also a plaint averment. It was after considering these contentions that the trial Court came to the conclusion that the plaint is a vexatious one and is liable to be rejected.

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In the case of Daliben Valjibhai 's case (supra), it was held that where fraud is alleged, the limitation starts to run only from the date when the fraud is discovered. We are of the opinion that the contention of the appellant that the Release Deed of the year 1995 was vitiated by fraud is completely unsubstantiated. That also is not the plaint averment.

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Having considered the contentions advanced on either side and the decisions relied on by the learned counsel for the appellants, we are of the opinion that there is no error in the adjudication made by the trial Court. The main relief sought for in the suit, being for a declaration that the Release Deed dated 07.12.1995 is not binding on the plaintiffs and the second relief being only consequential to the first one, we are of the opinion that the view taken by

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the trial Court was perfectly legal and valid. The appeal fails and the same is accordingly dismissed .

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All pending interlocutory applications shall stand

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dismissed.

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There will be no order as to costs.

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