Telangana High Court
Cheera Anusha vs Gorige Pentaiah on 30 March, 2026
Author: K.Lakshman
Bench: K.Lakshman
THE HIGH COURT FOR THE STATE OF TELANGANA AT
HYDERABAD
THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
APPEAL SUIT NO.10 OF 2026
Dated: 30.03.2026
1.Cheera Anusha and another
... Appellants-Respondent Nos.1 & 2-Plaintiffs
Vs.
1.Gorige Pentaiah
... Respondent No.1-Petitioner-Defendant No.1
2.Gorige Bakkamma and others
... Respondents-Defendants
[R2 to R45 are not necessary parties in this appeal]
JUDGMENT
(per the Hon'ble Justice B.R.Madhusudhan Rao)
1. This Memorandum of Appeal is filed under Section 96 of Code of Civil Procedure (CPC) assailing the order passed by the learned I Additional District Judge at Bhuvanagiri in I.A.No.427 of 2023 in O.S.No.124 of 2019, dated 12.09.2025.
2. Appellants are the respondent Nos.1 and 2 - plaintiffs. Respondent No.1 is the petitioner - defendant No.1 in I.A.No.427 of 2023 in O.S.No.124 of 2019.
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3. It is mentioned in the cause title of the appeal that respondent Nos.2 to 45 are not necessary parties to the present appeal.
4. Learned counsel for the appellants - respondent Nos.1 and 2
- plaintiffs submits that the learned Trial Court rejected the plaint on the ground that the suit for partition is not maintainable and that the learned Trial Court failed to see that by virtue of compromise decree in O.S.No.386 of 1990, dated 28.02.1991 among the brothers and father of respondent No.1 - petitioner - defendant No.1, 'E' schedule properties therein were allotted to him, which remained as joint family property, wherein the appellants - respondent Nos.1 and 2 - plaintiffs have share. The reasoning of the learned Trial Court that on partition it became self acquired property of respondent No.1 - petitioner - defendant No.1 is erroneous. The learned Trial Court having dismissed I.A.No.275 of 2024 on the ground that there is a cause of action for filing the suit and also that the suit is not barred by limitation, erred in allowing I.A.No.427 of 2023. The learned Trial Court failed to see that the right claimed in suit is by virtue of Section 6 of the Hindu Succession Act as amended in 2005 and the lack of expression 'coparcener' in the plaint does not in any way affect the rights of the appellants - respondent Nos.1 and 2 - plaintiffs for partition. 3/16
KL,J & BRMR,J A.S.No.10 of 2026 To substantiate his contention learned counsel has relied on the decision in the case of Shyam Narayan Prasad Vs. Krishna Prasad and Others 1 and prayed to allow the appeal.
5. Learned counsel for the respondent No.1 - petitioner - defendant No.1 submits that the learned Trial Court has rightly observed in the order that the appellants - respondent Nos.1 and 2
- plaintiffs did not file any document to show that the schedule properties were acquired by respondent No.1 - petitioner - defendant No.1 from the sale proceeds of ancestral properties situated at Thattikhana village, Abdullapurpet Mandal. The learned Trial Court has rightly held that the suit filed by the appellants - respondent Nos.1 and 2 - plaintiffs is barred by limitation. Counsel to substantiate his contention has relied on the decisions in the cases of (i) T.Arivandandam Vs. T.V.Satyapal and Others 2 (ii) Uttam Vs. Saubhag Singh and Others 3 (iii) Dahiben Vs. Arvindbhai Kalyanji Bhanusali (D) thr. L.Rs. and Ors 4, (iv) Vineeta Sharma Vs. Rakesh Sharma and Ors. 5, (v) Angadi Chandranna vs. Shankar and Others 6 (vi) S.Sampoornam Vs. C.K.Shanmugam and Others 7 1 (2018) 7 SCC 646 2 MANU/SC/0034/1977 3 MANU/SC/0256/2016 4 MANU/SC/0508/2020 5 MANU/SC/0582/2020 6 MANU/SC/0528/2025 7 MANU/TN/2426/2022 4/16 KL,J & BRMR,J A.S.No.10 of 2026
(vii) Nachiketa Kantibhai Patel and Others Vs. Kantibhai Ishwarbhai Patel and Others 8 and prayed to dismiss the appeal.
6. Learned counsel for the appellants - respondent Nos.1 and 2
- plaintiffs has filed synopsis and learned counsel for respondent No.1 - petitioner - defendant No.1 has given list of dates.
7. Now the point for consideration is: whether the order passed by the learned Trial Court suffers from any perversity or illegality, if so, does it require interference of this Court?
8. Appellants - respondent Nos.1 and 2 - plaintiffs have filed suit under Order VII Rule 1 read with Section 26 of CPC against the respondents - defendants to pass a preliminary decree declaring the plaintiffs and defendant No.1 as 1/3rd share holders each out of the suit schedule 'A' to 'T' properties; to appoint an advocate commissioner as per the preliminary decree with metes and bounds and to pass final decree as per the report of the advocate commissioner and to declare (44) registered sale deed document No.7309/2010, dated 27.09.2010, (46) registered sale deed document No.21872/2018, dated 24.10.2018 and (45) registered agreement of sale cum irrevocable GPA with possession vide document No.21871/2018, dated 24.10.2018 of SRO 8 MANU/GJ/1186/2025 5/16 KL,J & BRMR,J A.S.No.10 of 2026 Yadagirigutta as null and void and not binding on the plaintiffs [appellants herein].
9. It is stated in the plaint that the appellants - respondents Nos.1 and 2 - plaintiffs are the own sisters and respondent No.1 - petitioner - defendant No.1 is their father, they are born to their natural mother namely Bakkamma and they jointly constitute a Hindu Joint Family governed by Mithakshara School of Hindu Law. Originally respondent No.1 - petitioner - defendant No.1 has acquired ancestral properties at Thattikhana village, Abdullapurmet Mandal in Survey No.25, admeasuring Ac.20-15 gts towards his share and he sold the said lands, with the said amounts purchased schedule properties on his name and also on the names of the respondent Nos.2 to 5 - defendant Nos.2 to 5. The suit schedule properties are the joint family properties and are liable for partition. The suit schedule A to T properties are shown in paragraph Nos.5 to 24 of the plaint. Respondent No.1 - petitioner - defendant No.1 behind back of respondent No.2 - defendant No.2, who is his first wife kept respondent No.5 - defendant No.5 as his concubine and though her he begot respondent Nos.3 and 4 - defendant Nos.3 and 4. Respondent Nos.1 to 5 - defendant Nos.1 to 5 have alienated suit schedule H, I, J and T properties to different persons under different documents. 6/16
KL,J & BRMR,J A.S.No.10 of 2026 Appellants - respondent Nos.1 and 2 - plaintiffs have demanded respondent No.1 - petitioner - defendant No.1 to partition the properties in the month of May 2019 but he has postponed the same. On 05.07.2019 appellants - respondent Nos.1 and 2 - plaintiffs demanded the respondent No.1 - defendant No.1 for cancellation of registered documents and also for amicable partition of the suit schedule properties but they bluntly refused, which forced them to file suit for partition.
10.1 Respondent No.1 - petitioner - defendant No.1 has filed I.A.No.427 of 2023 under Order VII Rule 11(a) & (d) read with Section 151 of CPC to reject the plaint as there is no cause of action, barred by amended Hindu Succession Act and the Limitation Act.
10.2 The affidavit filed by respondent No.1 - petitioner - defendant No.1 states that the plaint is silent with regard to the date and year of alienation of ancestral properties situated at Thattikhana village, Adbullapurpet Mandal. During the life time of father of respondent No.1 - petitioner - defendant No.1, he alienated all his ancestral properties and as such the properties covered under the suit schedule properties are his self acquired properties and his family members have no right to question the same during his life time. Section 6(1) of Hindu Succession Act is clear that the disposition or 7/16 KL,J & BRMR,J A.S.No.10 of 2026 alienation, partition or testamentary disposition which have taken place before 20.12.2004 cannot be challenged. The documents filed along with the plaint are much prior to the said amendment and the suit is barred by amended Hindu Succession Act. 10.3 Appellants - respondent Nos.1 and 2 - plaintiffs have filed their counter contending that suit is not barred by limitation and cause of action subsists and the contentions raised by respondent No.1 - petitioner - defendant No.1 in the affidavit have to be decided during the course of trial.
11.1 It is to be noted here that respondent No.5 - defendant No.5 has also filed an application i.e., I.A.No.275 of 2024 in O.S.No.124 of 2019 under Order VII Rule 11(a) & (d) read with Section 151 of CPC to reject the plaint for lack of cause of action and barred by limitation.
11.2 Appellants - respondent Nos.1 and 2 - plaintiffs have filed counter and contested the application. The learned Trial Court has dismissed I.A.No.275 of 2024 and observed in paragraph Nos.7 and 8 as under:
"7. ... The plaintiffs have pleaded in the cause of action paragraph in plaint that they demanded the defendant no.1 for partition in May, 2019 and demanded for cancellation of registered documents and for amicable partition in July, 2019 but the defendants refused for the same and thus, the cause of action arose.8/16
KL,J & BRMR,J A.S.No.10 of 2026 They did not clearly state how the suit is within limitation but have only stated that the suit is filed within the period of limitation under Articles 114 and 54 of the Limitation Act. However, as the respondents/plaintiffs have pleaded that the plaint has been filed within the period of limitation as the defendant no.1 and other defendants refused for amicable partition and for cancellation of documents on specified dates, this Court finds that the contention of petitioner that the plaint is barred by limitation is untenable.
8. With regard to the contention of petitioner that she has purchased K schedule property through a registered sale deed vide document No.68/2019, dt: 7-12-2018 and that she acquired T schedule property from her husband, who is respondent herein/defendant No.1 from her shreedhana, and that her husband in turn acquired the same from Ashanna, Ushanna and Karre Rajaiah through an ordinary sale deed and that the same was implemented in the revenue records, the same has to be proved through cogent evidence in trial. Unless the same is proved, application of section 14 of the Hindu Succession Act does not arise. Therefore, this Court finds no merits in this petition."
12. Insofar as I.A.No.427 of 2023 filed by the respondent No.1 - defendant No.1 to reject the plaint, the learned Trial Court observed in paragraph Nos.10, 11 and 13, which reads as under:
"10. ... The schedule properties having been purchased by the petitioner herein even as per the documents relied on by the respondents/plaintiffs, he can deal with those properties as he likes and none can seek for their partition during his lifetime, and as he is alive, testementary disposition does not arise. The petitioner herein having acquired his share along his brothers and father as joint owner of the schedule properties in O.S.No. 386/1990 through and Compromise Decree, dt: 28.2.1991, this Court finds that the purchases, if any made by him with the sale proceeds of 'E- schedule property" that was allotted to him in the compromise Decree shall be deemed to be self-acquired properties only as per settled law and 9/16 KL,J & BRMR,J A.S.No.10 of 2026 that the respondents/plaintiffs cannot lay claim for partition in the said properties. Moreover, by virtue of the aforesaid proviso to Section 6(1), the respondents/plaintiffs cannot question the partition since it was by a Compromise Decree made by the Court, long before 20th December, 2004.
11. ... Apparently, the respondents/plaintiffs claimed share in the suit schedule properties as members of Hindu joint family and that the schedule properties are Hindu Joint Family Ancestral Properties, and not as coparceners. However, as the respondents/plaintiffs did not file any document to show that the suit schedule properties were acquired by petitioner/defendant no.1 from the sale proceeds of ancestral properties situated at Thattikhana village that were inherited from his forefathers, and as the documents filed by the plaintiffs are inconsistent to their claim, and as the children/plaintiffs cannot seek for partition of self acquired properties of their father/petitioner herein during his life time as they do not qualify to be termed as "Heirs" as defined under Section 3(f) of the Hindu Succession Act, 1956, this Court finds that the plaint is barred by law.
13. The present suit is clearly an abuse of process of law as the respondents/plaintiffs' claim is barred by law. When their main relief for partition is not maintainable, the consequential relief sought for declaration of registered deeds as null and void and not binding on the plaintiffs also must fail. For all the aforesaid reasons, this Court finds that the plaint is liable to be rejected for being barred by law. The point is accordingly answered."
13. It is settled principle of law 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 10/16 KL,J & BRMR,J A.S.No.10 of 2026 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. See: Shyam Narayan Prasad1.
14.1 In T.Arivandandam2 the Apex Court held that "If clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing."
14.2 In Uttam3 the Apex Court observed that insofar as joint family property governed by Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:
(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 immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(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.
(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.11/16
KL,J & BRMR,J A.S.No.10 of 2026 14.3.1 Under Order VII Rule 11 of CPC, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
14.3.2 In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. 14.3.3 The test for exercising the power Under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I and Anr., MANU/SC/0951/2003: (2004) 9 SCC 512 which reads as:
139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading, the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, decree would be passed.
In Hardesh Ores (P.) Ltd. v. Hede & Co. MANU/SC/7671/2007: (2007) 5 SCC 614 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the 12/16 KL,J & BRMR,J A.S.No.10 of 2026 allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. 14.3.4 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power Under Order VII Rule 11 Code of Civil Procedure.
14.3.5 "Cause of action" means every fact which would be necessary for the Plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the Plaintiff to prove in order to entitle him to the reliefs claimed in the suit. See: Dahiben4. 14.4. In Vineeta Sharma5 Three Judge Bench of the Apex Court has answered the reference as under:
(a) 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.
(b) The rights could be claimed by the daughter born earlier with effect from the date of commencement of Amendment Act with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the date on which the Hindu Succession (Amendment) Bill, 2004 was introduced in the Rajya Sabha.
(c) Since the right in coparcenary was by birth, it was not necessary that father coparcener should be living as on date of commencement of Amendment Act.13/16
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(d) 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 were required to be given full effect. Notwithstanding that a preliminary decree had been passed the daughters were to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(e) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition could not 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 was supported by public documents and partition was finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone could not be accepted and to be rejected outrightly.
14.5 In Angadi Chandranna6 the Apex Court held that the intention of the parties and the recitals in the partition deed establish that the parties wanted to go their separate ways and did not want the property to remain as joint family property. 14.6 In S.Sampoornam7 Madras High Court held that 'after the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes 14/16 KL,J & BRMR,J A.S.No.10 of 2026 his self-acquired property, and does not remain coparcenary property'.
14.7 In Nachiketa Kantibhai Patel8 High Court of Gujarat at Ahmedabad held that 'before commencement of the 1956 Act if a property had been impressed with the character of a coparcenary property it remained the same and it would devolve as per Section 6 of the Act. However, if the property was not a coparcenary property before commencement of the 1956 Act and succession opened after 1956 Act of a self-acquired property, it would be transferred only as an individual property and no coparcenary would be created thereafter of such property'.
15. As stated supra, at one breath, the leaned Trial Court while deciding the rejection of plaint application filed by respondent No.5
- defendant No.5 in I.A.No.275 of 2024, arrived at a conclusion that the suit is not barred by limitation and the application of Section 14 of Hindu Succession Act does not arise. While deciding the rejection of plaint application filed by respondent No.1 - petitioner - defendant No.1 in I.A.No.427 of 2023 arrived at a conclusion that the suit is barred by law. I.A.No.275 of 2024 filed by respondent No.5 - defendant No.5 is under Order VII Rule 11 (a) and (d) of CPC read with Section 151 of CPC so also I.A.No.427 of 2023 filed by respondent No.1 - petitioner - defendant No.1 is also 15/16 KL,J & BRMR,J A.S.No.10 of 2026 under Order VII Rule 11 (a) and (d) of CPC read with Section 151 of CPC. Prayer made in both the applications is to reject the plaint as lack of cause of action, barred by limitation and barred by amended Hindu Succession Act.
16.1 On careful reading of the plaint at paragraph No.3 appellants
- respondent Nos.1 and 2 - plaintiffs contended that they constitute a joint Hindu Family governed by Mithakshara School of Hindu Law. The learned Trial Court has not discussed about the same in the impugned order. But learned Trial Court considered the merits of the case stating that the respondent No.1 - petitioner
- defendant No.1 can deal with those properties as he likes and none can seek for their partition during his life time as he is alive, testamentary dispossession does not arise. The learned Trial Court has not considered the documents filed by the appellants - respondent Nos.1 and 2 - plaintiffs along with the plaint. 16.2 Appellants - respondent Nos.1 and 2 - plaintiffs have filed I.A.No.276 of 2024 in O.S.No.124 of 2019 under Order VII Rule 14 of CPC to receive khasra pahani for the year 1954-55 (2 in number) and other pahanis of different survey numbers including C.C. of compromise judgment in O.S.No.386 of 1990 total 29 documents. The learned Trial Court having dealt with compromise judgment in 16/16 KL,J & BRMR,J A.S.No.10 of 2026 O.S.No.386 of 1990 failed to look into other documents and failed to discuss the same.
17. The learned Trial Court has taken inconsistence views in both the orders and this Court is of the view that this is a fit case to remand the matter to the learned Trial Court to decide the matter afresh. We are not expressing any opinion on the merits of the case and leaving it open to the learned Trial Court to decide the application in accordance with law preferably within a period of one month from the date of receipt of the order.
18. In the result, A.S.No.10 of 2026 is allowed and the order passed by the learned I Additional District Judge at Bhuvanagiri in I.A.No.427 of 2023 in O.S.NO.124 of 2019, dated 12.09.2025 is set aside and the matter is remanded back to the learned Trial Court as observed in the order. There shall be no order as to costs.
Interim orders if any stands vacated, miscellaneous petitions if any shall stand closed.
_________________________ JUSTICE K.LAKSHMAN _____________________________________ JUSTICE B.R.MADHUSUDHAN RAO 30.03.2026 Dua