Minor. Mohitra Vs K. Palaniappan

Prayer:- Appeal Suit filed under Section 96 of Civil Procedure Code to set aside the Judgment and Decree dated 14.08.2023 made in I.A.No.216 of 2022 in O.S.No.23 of 2018 on the file of the learned third Additional District Judge, Kallakurichi.

¶13

For Appellant : Mr.N.Manoharan For Respondents : Mr.N.Nathami for Mr.M.R.Vivekananthan

¶14

1/25

¶15

https://www.mhc.tn.gov.in/judis

¶16

A.S.No.53 of 2024

¶17

J U D G M E N T

¶18

This First Appeal has been filed to set aside the Judgment and

¶19

Decree dated 14.08.2023 made in I.A.No.216 of 2022 in O.S.No.23 of 2018 on the file of the learned third Additional District Judge, Kallakurichi.

¶20

The learned Counsel for the Appellant submitted that the Plaintiff in O.S.No.23 of 2018 on the file of the learned 3^rd Additional District Judge, Villupuram at Kallakurichi is the Appellant herein. The Suit was instituted on behalf of the minor daughter her the mother as the guardian/next friend as Plaintiff, against the Defendants 1 to 3 seeking the relief of partition.

¶21

The minor Plaintiff is the daughter of the third Defendant. The first Defendant is the paternal grandfather. As per the Plaint averments, the Suit property described in the Plaint Schedule was allotted to the share of the Defendants 1 to 3 in the family partition wherein, in the partition deed dated 02.12.1998 it is clearly mentioned as ancestral property. On the date of such partition, if the coparceners were unmarried, then the property

¶22

2/25

¶23

https://www.mhc.tn.gov.in/judis

¶24

A.S.No.53 of 2024

¶25

could be considered as self-acquired property. The Defendants 1 to 3 are father and son and therefore, after marriage of the third Defendant, automatically the daughter has to be treated as a coparcenor to the property, as per Section 6 of the Hindu Succession Act as amended (dated 13.08.2005).

¶26

The learned Judge had proceeded under the presumption that it was a self-acquired property of the late grandfather of the Defendants 1 and 3, in which the Plaintiff has now claimed partition. Therefore, the Order passed by the learned 3^rd Additional District Judge, Villupuram at Kallakurichi in I.A.No.216 of 2022 in O.S.No.23 of 2018 allowing the Petition under Order VII Rule 11 of Civil Procedure Code filed by the first Defendant, paternal grandfather of the Plaintiff, is erroneous and liable to be set aside.

¶27

In support of his contention, the learned Counsel for the Appellant had relied on the following rulings:-

¶28

(i) In the case of Rohit Chauhan Vs. Surinder Singh and others

¶29

((2013) 9 SCC 419. The relevant portion reads as follows:-

¶30

“ 11. We have bestowed our consideration to the rival

¶31

3/25

¶32

https://www.mhc.tn.gov.in/judis

¶33

A.S.No.53 of 2024

¶34

submission and we find substance in the submission of Mr. Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the Joint Hindu family and before commencement of Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.

¶35

14. A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which defendant no. 2 got on partition was an ancestral property and till the birth of the plaintiff he was sole surviving coparcener but the moment plaintiff was born, he got a share in the father’s property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of defendant

¶36

4/25

¶37

https://www.mhc.tn.gov.in/judis

¶38

A.S.No.53 of 2024

¶39

no. 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth defendant no. 2 could have alienated the property only as Karta for legal necessity. It is nobody’s case that defendant no. 2 executed the sale deeds and release deed as Karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale- deeds and release deed, the parties can work out their remedies in appropriate proceeding.”

¶40

(ii) In the case of Geetha Vs. Nanjundaswamy and Ors

¶41

(MANU/SC/1199/2023). The relevant portion reads as follows:-

¶42

“ 9. If the statements in the plaint are taken to be true, the joint family properties may enure to the benefit of its members and they may well be available for partition. This is a matter of trial, the result of which would depend upon the evidence adduced by the Plaintiff. At this stage, we are not concerned with the correctness of the averments, except to state that the Plaintiffs have the carriage of the proceedings, and have to discharge the heavy burden of proving their case. In so far as the application under Order VII Rule 11 of CPC is concerned, this Court will proceed only that far, to examine whether the plaint discloses a cause of action, and no further.

¶43

10. The High Court committed an error by examining the merits of the matter. It pre-judged the truth, legality and validity of the sale deed under which the Defendants No. 4 to 14 claim title. This is not to say that the Plaintiffs have any less burden to prove their case or even that their case is probable. Simply put, the High Court could not have anticipated the truth of the averments by assuming that the

¶44

5/25

¶45

https://www.mhc.tn.gov.in/judis

¶46

A.S.No.53 of 2024

¶47

alleged previous sale of the property is complete or that it has been acted upon. The approach adopted by the High Court is incorrect and contrary to the well-entrenched principles of considering an application under Order VII Rule 11, CPC. Under these circumstances, we set aside the judgment and the order passed by the High Court and dismiss the application under Order VII Rule 11, CPC, and restore the suit even with respect to properties mentioned under Schedule A of the Plaint.”

¶48

The learned Counsel for the Respondents submitted that the Suit

¶49

in O.S.No.23 of 2018 on the file of the learned 3^rd Additional District

¶50

Judge, Villupuram at Kallakurichi was filed by the minor represented by her mother/guardian against her father, grandfather and her aunt seeking partition and separate possession of her alleged 1/6^th share in the Suit scheduled properties. According to the Plaintiff, the Suit properties and other properties are the joint family properties belonging to the first Respondent's father/minor Plaintiff's great grandfather, to the first Respondent/K.Palaniappan and his brother/Krishnan and their children. It is also alleged that there was a partition deed dated 02.12.1998 registered as Document No.243/1999 amongst the Defendants wherein the B' schedule properties to the partition deed which are the Suit properties herein, was allotted to the family members of the Defendants. The Plaintiff herein alleged that as per the Hindu Succession Act, the Petitioner who is the only daughter of the third Respondent herein is entitled to seek

¶51

6/25

¶52

https://www.mhc.tn.gov.in/judis

¶53

A.S.No.53 of 2024

¶54

partition of her 1/6^th share in the properties belonging to her father/3^rd Respondent. It was also alleged that there had been matrimonial dispute between the Plaintiff's mother/guardian and third Defendant. Therefore, the Suit for partition.

¶55

The Defendants had filed written statement disputing the claim of

¶56

the Plaintiff and sought for dismissal of the Suit. Pending Suit, the first Defendant had filed a Petition in I.A.No.216 of 2022 under Order 7 Rule 11 of CPC for rejection of the Plaint. In the said Petition, the first Defendant had stated that the Suit properties and other properties were purchased by the first Defendant and his brother jointly under various Sale deeds. The said properties were jointly enjoyed by them as their individual properties. The said properties that were jointly purchased by the first Defendant and his brother were partitioned under a registered partition deed dated 02.12.1998 vide Document No.243 of 1999 wherein the Suit properties were allotted to the first Defendant. The first Defendant became the absolute owner of the Suit properties. However, in the partition deed, by mistake, it was described as a joint family property. The self-acquired property is partitioned between the co-owners in which merely adding the names of their minor children will not give any rights to them. Therefore, 7/25

¶57

https://www.mhc.tn.gov.in/judis

¶58

A.S.No.53 of 2024

¶59

the Suit properties are the absolute properties of the first Defendant and his children do not have any rights. Therefore, the minor Plaintiff who is the daughter of the third Defendant/son's daughter of the first Defendant cannot claim any right over the Suit property. The sale deeds in respect of the Suit properties will clearly establish his absolute right over the Suit property, merely adding the name of minor children of the first Defendant will not confer any right on them. More so, the minor Plaintiff being the granddaughter of the first Defendant cannot claim any right over the properties belonging to the grandfather. Therefore, the Plaint is liable to be rejected.

¶60

The Petition under Order VII Rule 11 of the Civil Procedure Code

¶61

filed by the Defendants states that the Plaintiff allegedly relied upon the partition deed and falsely stated that the Suit properties are the joint family property and that she is entitled to a share, through her father, third Defendant. The learned third Additional Judge, Villupuram at Kallakurichi, after considering the submissions of both the parties, and also relying upon the registered sale deed had rightly concluded that the Suit properties are the self-acquired properties of the first Defendant and that the Plaintiff is not entitled to claim share in the said properties. 8/25

¶62

https://www.mhc.tn.gov.in/judis

¶63

A.S.No.53 of 2024

¶64

Accordingly, the learned District Judge had allowed the Petition in I.A.No.216 of 2022. The learned District Judge considering the registered

¶65

sale deeds in the name of the first Defendant has categorically given a finding that the Suit properties are self-acquired properties of the first Defendant and rightly rejected the Plaint as the Plaintiff is not entitled to seek any partition of individual properties.

¶66

The dispute between the third Defendant and his wife is the cause for the filing of the partition Suit. The third Defendant had initiated proceedings before the Family Court seeking for divorce. The mother of the minor Plaintiff filed a Petition for maintenance which is pending. Under these circumstances, the mother of the minor Plaintiff filed the present Suit, making an illegal claim over the Suit properties that belong to the first Defendant. Hence, the claim of the minor Plaintiff seeking partition has no bona-fides and it is the invention of the Plaintiff's mother to harass the family members of the first and third Defendants. Therefore, the trial Court had rightly rejected the Plaint and there is no merits in the present Appeal.

¶67

The Defendants cannot be compelled to conduct a vexatious Suit

¶68

9/25

¶69

https://www.mhc.tn.gov.in/judis

¶70

A.S.No.53 of 2024

¶71

and therefore, the first Defendant filed the Petition for rejection of Plaint and it was rightly allowed by the learned 3^rd Additional District Judge,

¶72

Villupuram at Kallakurichi.

¶73

In support of his contention, the learned Counsel for the

¶74

Respondent relied on the reported ruling in the case of Apaji Narhar

¶75

Kulkarni and another Vs. Ramchandra Ravji Kulakarni, reported in

¶76

(1891) ILR 16 Bom. 29, F.B. The relevant portion reads as follows:-

¶77

“In the same way in Rai Bishenchand Vs. Massumat Asmaida Koer (L.R 11 Ind. Ap. 164.), the Judicial Committee of the Privy Council remarked that “according to the Mitakshara (Chap. I, Sec. 5 Verse 3) there can be no partition directly between grandfather and grandson while the father is alive.”

¶78

Point for Determination:-

¶79

Whether the Order of the learned 3^rd Additional District Judge, Villupuram at Kallakurichi in I.A.No.216 of 2022 in O.S.No.23 of 2018 dated 14.08.2023 rejecting the Plaint under Order VII Rule 11 of Civil Procedure Code is erroneous and is to be set aside as perverse?

¶80

Heard the learned Counsel for the Appellant and the learned

¶81

Counsel for the Respondents.

¶82

Perused the Plaint averments.

¶83

10/25

¶84

https://www.mhc.tn.gov.in/judis

¶85

A.S.No.53 of 2024

¶86

As per the Plaint averments, the Plaintiff claims that the Suit properties are ancestral properties and the partition dated 02.12.1998 between the brothers viz., first defendant and his brother in which 'B' schedule property was allotted to the first Defendant and his minor children. Based on the said document, the Plaintiff had sought partition. The cause of action is claimed that the Defendants 1 to 3 are attempting to alienate the properties in which the minor has right.

¶87

As per the ruling cited by the learned Counsel for the Plaintiff before the learned 3^rd Additional District Judge, Villupuram at Kallakurichi, the member of a joint family has the right to the joint family properties. It may diminish or enlarge based on births in the joint family and deaths occurring in the joint family. But the share of the coparcener as a member of the joint family is continuous. As per the ruling of the Hon'ble Supreme Court reported in the case of Rohit Chauhan versus Surinder Singh and others ((2013) 9 SCC 419) , property falling in share of a single coparcener would be treated as his separate property vis-a-vis his relatives and he would be competent to alienate/deal with it in any manner he would like- But upon his marriage, subsequently when a son is born (and after 2005 Amendment to Hindu Succession Act, 1956, also a 11/25

¶88

https://www.mhc.tn.gov.in/judis

¶89

A.S.No.53 of 2024

¶90

daughter), property in his hand would be treated as coparcenary property in which son(s)/daughter(s) as coparceners would get shares – Hence, after the birth of a child, he could dispose of such property only as Karta for legal necessity. Therefore, Coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of a common ancestor. “Coparcenary” is a narrower body than the Joint Hindu Family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only the male members of the family used to acquire an interest in the coparcenary property by birth.

¶91

Also, the learned Counsel for the Appellant relied on the ruling

¶92

in the case of Geetha Vs. Nanjundaswamy and Ors

¶93

(MANU/SC/1199/2023) which is a case where the Plaint was partly rejected by the High Court and the same was set aside by the Hon'ble Supreme Court with the observations, which reads as follows:-

¶94

“ 9. If the statements in the plaint are taken to be true, the joint family properties may enure to the benefit of its members and they may well be available for partition. This is a matter of trial, the result of which would depend upon the evidence adduced by the Plaintiff. At this stage, we are not concerned with the correctness of the averments, except to state that the Plaintiffs have the carriage of the proceedings, and have to discharge the heavy burden of proving

¶95

12/25

¶96

https://www.mhc.tn.gov.in/judis

¶97

A.S.No.53 of 2024

¶98

their case. In so far as the application under Order VII Rule 11 of CPC is concerned, this Court will proceed only that far, to examine whether the plaint discloses a cause of action, and no further.

¶99

10. The High Court committed an error by examining the merits of the matter. It pre-judged the truth, legality and validity of the sale deed under which the Defendants No. 4 to 14 claim title. This is not to say that the Plaintiffs have any less burden to prove their case or even that their case is probable. Simply put, the High Court could not have anticipated the truth of the averments by assuming that the alleged previous sale of the property is complete or that it has been acted upon. The approach adopted by the High Court is incorrect and contrary to the well-entrenched principles of considering an application under Order VII Rule 11, CPC. Under these circumstances, we set aside the judgment and the order passed by the High Court and dismiss the application under Order VII Rule 11, CPC, and restore the suit even with respect to properties mentioned under Schedule A of the Plaint.”

¶100

If the averments in the Plaint alone are considered, there is a

¶101

cause of action as per Order VII Rule 11 of the Civil Procedure Code, only if there is no cause of action, the Plaint can be rejected. Here, it is the case of the minor Plaintiff by her natural guardian/mother that the Defendants 1 to 3 are attempting to alienate which will cause loss to the minor Plaintiff. Also, she had relied on the partition deed executed between the first Defendant and his brother where the words are used as joint family ancestral properties.

¶102

13/25

¶103

https://www.mhc.tn.gov.in/judis

¶104

A.S.No.53 of 2024

¶105

In the Petition in I.A.No.216 of 2022, the first Defendant claims

¶106

that he had purchased the property. In the partition, by mistake, it was referred to as joint family ancestral properties and by mistake, the names of the minor children of the first Defendant were included which was relied by the Plaintiff seeking relief of partition for the minor Plaintiff. Therefore, it is the contention of the first Defendant in the Suit that the properties are self-acquired properties of the first Defendant and when the first Defendant/grandfather and third Defendant/father are alive, the Plaintiff as minor Plaintiff cannot seek partition against the grandfather's property. This part of the Petition averments was relied on by the learned 3^rd Additional District Judge, Villupuram at Kallakurichi in arriving at a conclusion that there is no cause of action to institute a Suit for partition by the minor Plaintiff against her grandfather and father. Therefore, in spite of the objection by the Plaintiff as Respondent filing counter stating that what had been raised by the first Defendant in I.A.No.216 of 2022 is subject to be decided through oral and documentary evidence and cannot be considered at that stage under Order VII Rule 11 of the Civil Procedure Code was rejected by the learned 3^rd Additional Judge and thereby allowed the Petition.

¶107

14/25

¶108

https://www.mhc.tn.gov.in/judis

¶109

A.S.No.53 of 2024

¶110

As per the submission of the learned Counsel for the Respondent and as per the ruling cited by the learned Counsel for the Respondent reported in the case of Apaji Narhar Vs. Ramchandra ((1891) ILR 16

¶111

Bom. 29, F.B) , here the facts and circumstances of the case are different.

¶112

As per the reported ruling relied by the learned Counsel for the Respondents/Defendants before the trial Court which is the Judgment of the Privy Council (in which it was not Hindu Law as on today in the statute, Hindu Law as it prevailed then as customary law unlike the present day the codified Hindu Law), after the Hindu Succession Act as amended in 2005, the daughters are entitled to claim share in the joint family ancestral property. The daughters were also treated equally as sons as coparcener in Hindu joint family. Here, on behalf of the minor daughter, the natural guardian mother had instituted the Suit seeking partition on the apprehension that Defendants 1 to 3 are attempting to encumber the properties. The Plaintiff had relied on the partition deed dated 02.12.1998 in which there were clear recitals that the first Defendant who is the party to the partition deed was allotted the properties in his favour along with his minor children/Defendants 2 and 3 who were then minors in the year 1998. Therefore, it is the claim of the natural guardian mother of the minor 15/25

¶113

https://www.mhc.tn.gov.in/judis

¶114

A.S.No.53 of 2024

¶115

Plaintiff that the properties are joint family ancestral property in which as per partition, the third Defendant had a share.

¶116

The attempt of the first Defendant, grandfather of the minor

¶117

Plaintiff disputing the claim of the Plaintiff in the Plaint stating that those properties were acquired by him and his brother jointly. Subsequently they partitioned it in the year 1998, in which the word, “joint family property” was included in the partition deed was by mistake. Hence, it is not a joint family property. This part of the affidavit of the first Defendant as Petitioner in I.A.No.216 of 2022 in O.S.No.23 of 2018 is disputed by the Plaintiff as Respondent in the counter stating that the very words relied by the first Defendant as Petitioner is something for evidence during trial and not to be considered at the stage of deciding a Petition under Order VII Rule 11 of the Civil Procedure Code to decide whether there was a cause of action, whether the Suit is vexatious exercise and waste of Court's time. This part of the objection raised by the Plaintiff as Respondent was rejected by the learned III Additional District Judge, Villupuram at Kallakurichi and arrived at a conclusion that there is no cause of action to institute a Suit for partition. When the grandfather is alive, when the father is alive, the granddaughter cannot seek partition. In the latest ruling of the 16/25

¶118

https://www.mhc.tn.gov.in/judis

¶119

A.S.No.53 of 2024

¶120

Hon'ble Supreme Court in the case of Vineetha Sharma Vs. Rakesh Sharma and others ((2020) 9 SCC 1), it was reiterated that a daughter or woman is entitled to claim partition irrespective of the fact whether the father is alive or not.

¶121

As per the reported ruling relied on by the learned Counsel for the Appellant in the case of Geetha Vs. Nanjundaswamy and Ors (MANU/SC/1199/2023), the Court shall exercise its discretion to reject the Plaint only on the words and sentence in the Plaint and not on any other material. Here, the learned III Additional District Judge, Villupuram at Kallakurichi had considered the contents of the Petition in I.A.No.216 of 2022 filed by the first Defendant stating that the properties are selfacquired properties of the first Defendant and by inadvertence, the words “joint family property” crept in partition deed of the year 1998, but actually, the properties are self-acquired properties. Therefore, based on the affidavit of the first Defendant as Petitioner in I.A.No.216 of 2022 in O.S.No.23 of 2018, the documents relied on by him were considered and

¶122

not the Plaint averments. The Plaint averments were considered only regarding the fact that there is no cause of action as the minor Plaintiff cannot seek partition when the father and grandfather were alive, which is 17/25

¶123

https://www.mhc.tn.gov.in/judis

¶124

A.S.No.53 of 2024

¶125

opposed to the ruling of the Hon'ble Supreme Court in the case of Vineetha Sharma Vs. Rakesh Sharma and others ((2020) 9 SCC 1) where it is specifically stated that the Suit for partition by a daughter is maintainable, irrespective of the fact whether the father is alive or dead.

¶126

On perusal of the Plaint averments, it is found that there had been a matrimonial dispute between the wife and husband, the natural guardian mother and father of the minor Plaintiff/third Defendant. Therefore, to protect the interest of the minor daughter, natural guardian mother had instituted the Suit for partition to safeguard her right as a coparcener in the properties of the joint Hindu family consisting of her father and grandfather. For this, the natural guardian mother of the minor Plaintiff had relied on the partition deed executed between the first Defendant and his brother in which the names of the minor children of the

¶127

first Defendant, the Defendants 2 and 3 were mentioned. Third Defendant/father of the minor Plaintiff, who was then a minor was included in the partition deed in which 'B' schedule property was allotted to the family consisting of the Defendants 1 to 3 in the Suit in O.S.No.23 of 2018 pending on the file of the learned 3^rd Additional District Judge, Villupuram at Kallakurichi, that much of the facts and circumstances of the 18/25

¶128

https://www.mhc.tn.gov.in/judis

¶129

A.S.No.53 of 2024

¶130

case support the claim of the Plaintiff. Therefore, the claim made by the Defendants in I.A.No.216 of 2022 that there is no cause of action cannot at all be considered in the light of the averments in the Plaint. As observed in the reported decision of the Hon'ble Supreme Court in the case of Rohit Chauhan versus Surinder Singh and others ((2013) 9 SCC 419) , A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. Those words clearly apply to the status of the minor Plaintiff in the property of the joint family consisting of Defendants 1 to 3. When the minor Plaintiff had not approached the Court, there is every likelihood of the apprehension of the natural guardian mother that the Defendants 1 to 3 may cause encumbrance in which case the right of the minor will be lost in the joint family property which cannot be compensated. Also, in the reported ruling, it had been stated that the alienation is made by the Karta of the family in which the share of the minor is alienated. The Karta of the family, if having encumbered the property prior to the birth of the minor, the minor cannot challenge it. At the same time, after the birth of the minor and when the minor is alive, if the properties are encumbered, it is always subject to challenge. Here, the natural guardian the mother of the minor Plaintiff had 19/25

¶131

https://www.mhc.tn.gov.in/judis

¶132

A.S.No.53 of 2024

¶133

instituted the Suit to protect the interest of the minor in the joint family consisting of Defendants 1 to 3. However, the Suit was dismissed by the learned 3^rd Additional Judge, Villupuram at Kallakurichi based on facts not stated in the Plaint but the facts mentioned in the affidavit of the first Defendant. The third Defendant claimed that the first Defendant had a property as his self-acquired property and there was a partition between the first Defendant and his brother in which the words, “joint family” crept in by inadvertence. Whether the properties are self-acquired properties or properties acquired by the first Defendant based on income derived from the ancestral properties is something that is to be considered on the basis of evidence presented during trial and cannot be considered at the stage of Order VII Rule 11 of the Civil Procedure Code. The learned 3^rd Additional District Judge had erred in considering the affidavit of the first Defendant as Petitioner and the documents relied on by him, and arrived at a conclusion that those properties mentioned in the Plaint schedule are selfacquired properties. Consequently, the learned 3^rd Additional District Judge held that there was no cause of action for the Plaintiff to institute a Suit. This decision ignores the ratio laid down by the Hon'ble Supreme Court that the daughter is also a coparcener in a joint family and as per Section 6 of the Hindu Succession Act as amended. Therefore, merely 20/25

¶134

https://www.mhc.tn.gov.in/judis

¶135

A.S.No.53 of 2024

¶136

based on the ruling of the Privy Council that the granddaughter cannot maintain a Suit for partition when the grandfather is alive cannot be considered in all circumstances. Here, the facts and circumstances are different. The relationship between the parents of the minor Plaintiff is not cordial and there is a Petition for seeking divorce by the third Defendant and Petition for maintenance by the mother of the minor Plaintiff along with the minor against the third Defendant in which proceedings are pending in different forums. The claim made by the first Defendant that this is a Suit instituted only to cause harassment, and therefore, the Plaint is to be rejected was considered by the learned 3^rd Additional Judge, Villupuram at Kallakurichi as there is no cause of action to file a Suit for partition based on the ratio regarding the Suit for partition that grandson or granddaughter cannot maintain a Suit for partition against the grandfather when the grandfather is alive.

¶137

In the light of the rulings cited by the learned Counsel for the Appellant, the Order passed by the learned 3^rd Additional District Judge, Villupuram at Kallakurichi in I.A.No.216 of 2022 in O.S.No.23 of 2018 dated 14.08.2023 is found erroneous as per Order VII Rule 11 of the Civil Procedure Code. Therefore, exercising the discretion vested in this Court 21/25

¶138

https://www.mhc.tn.gov.in/judis

¶139

A.S.No.53 of 2024

¶140

under Section 96 and Order XLI of the Code of Civil Procedure, the same requires interference by this Court and therefore, the same is set aside.

¶141

The learned III Additional District Judge, Villupuram at

¶142

Kallakurichi is directed to proceed with trial and also mould the relief accordingly considering the interest of the minor Plaintiff in the peculiar circumstances of this case.

¶143

In the light of the above discussions, the point for determination is answered in favour of the Plaintiff and against the Defendants. The Order of the learned III Additional District Judge, Kallakurichi dated 14.08.2023 in I.A.No.216 of 2022 in O.S.No.23 of 2018 rejecting the Plaint under Order VII Rule 11 of the Code of Civil Procedure is perverse.

¶144

In the result, this First Appeal is allowed with costs . The Judgment and Decree dated 14.08.2023 in I.A.No.216 of 2022 in O.S.No.23 of 2018 on the file of the learned III Additional District Judge, Villupuram at Kallakurichi is set aside. Consequently, connected Miscellaneous Petition is closed.

¶145

22/25

¶146

https://www.mhc.tn.gov.in/judis

¶147

A.S.No.53 of 2024

¶148

dh

¶149

dh Index : Yes/No Speaking/Non-speaking order

¶150

03.06.2025