HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.1111 of 2022
ORDER:
Defendants in the suit filed the above revision assailing
the order dated 28.04.2022 in I.A.No.320 of 2022 in O.S.No.7
of 2021 on the file of III Additional District Judge, Rajampet.
2. 1st Respondent herein, being the plaintiff filed suit
O.S.No.7 of 2021 seeking partition of plaint schedule
properties into four equal shares by metes and bounds and
for grant of permanent injunction restraining the defendants
from alienating the schedule properties to the third parties
and to declare the registered partition deed dated 18.05.2005
as null and void and do not bind the plaintiff.
3. Averments, in brief, in the plaint are that Maddipatla
Narasimhulu Naidu and Subba Naidu are the sons of
Maddipatla Govindaiah Naidu, who inherited the properties
from his ancestors; that name of Govindaiah Naidu was
mutated in village accounts like 1-B namuna and adangals;
that Govindaiah Naidu was also blessed with four daughters
apart from two sons and the marriages of daughters were 2
performed; that in or around 1981 or 1982, Govindaiah
Naidu died intestate leaving behind him his wife
Narayanamma, two sons viz., Narasimhulu Naidu and Subba
Naidu, four daughters viz., Amruthamma, Subbalakshmi,
Subbamma and Jayalakshmi as his legal representatives;
that Narayanamma also died in the year 1984; that
Narasimhulu Naidu and Subba Naidu were enjoying their
ancestral properties jointly and later, misunderstandings
arose between them; that in the year 1999, Narasimhulu
Naidu and Subba Naidu got partitioned their ancestral
properties orally and in the said partition, plaint schedule
properties fell to the share of Subba Naidu; that since 1999,
Subba Naidu, plaintiff, defendants 2 and 3 were enjoying the
schedule properties jointly; that Subba Naidu died intestate
leaving behind him the plaintiff and defendants 1 to 3 as his
legal representatives; that plaintiff was married to
B.A.N.Chowdary and used to stay at her in-laws house and
later shifted to Hyderabad; that in the month of February,
2021, plaintiff reliably came to know that 3rd defendant
executed some nominal and sham documents in favour of his
followers regarding joint family properties and is also trying 3
to sell away the remaining properties; that plaintiff sent her
friends and relatives to defendants 1 to 3 seeking partition of
schedule properties, however it was not materialized; that
plaintiff applied for encumbrance certificate on 16.04.2021
and a perusal of it would show that father of plaintiff,
defendants 2 and 3 executed a nominal document for
different extents in favour of defendants 5 to 14; it also came
to light that plaintiff's father Subba Naidu and 3rd defendant
in collusion with each other created registered partition deed
dated 18.05.2005 with a view to avoid legitimate share of
plaintiff and 2nd defendant and the said document has no
legal sanctity, invalid, void and not binding on the plaintiff
and 2nd defendant; that taking advantage of registered
partition deed dated 18.05.2005, 3rd defendant executed
some more sham and nominal registered sale deeds in favour
of defendants 15 to 24 for different extents of properties; that
3rd defendant also purchased item No.9 of plaint schedule
property in his name and in the name of 4th defendant and
also purchased item No.6 of plaint schedule property in his
name with the joint family funds; that plaintiff addressed
letter dated 24.04.2021 to defendants 1 to 3 through 4
registered post demanding them to partition of schedule
properties; that defendants 1 to 3 did not give any reply nor
partitioned the properties; that 3rd defendant even after
receiving notice is executing sham and nominal registered
documents in favour of defendants 26 and 27 and hence,
filed the suit for partition.
4. 3rd Defendant filed written statement and the same was
adopted by defendants 1, 2 and 4.
5. Pending the suit, defendants 1 to 4 filed I.A.No.320 of
2021 under Order VII Rule 11 of CPC to reject the plaint.
6. In the affidavit filed in support of the petition, it was
contended interalia that since the plaintiff admitted about
registered partition deed dated 18.05.2005, to cancel the
document, suit had to be filed within three years from the
date of execution as per Article 59 of the Limitation Act.
Since the suit was filed in the year 2022, the suit is barred by
limitation. It was further contended that in view of
amendment to Section 6 of the Hindu Succession Act, which
came into force from 09.09.2005, if the properties are divided
among the male members prior to amendment, female 5
members will not have share over the said properties. Since
the registered partition deed was between 3rd defendant and
his father on 18.05.2005, plaintiff has no share in the subject
property and hence, the plaint is liable to be rejected. It was
further contended that alienations were made from 1993
onwards and as per Article 113 of the Limitation Act, plaintiff
had to challenge the alienations within three years from the
date of execution of documents and hence, suit is barred by
limitation. Further contended that registered partition deed
was executed between father Subba Naidu and paternal
uncle Narasimhulu Naidu on 10.03.1986 and later when
disputes arose, Narasimhulu Naidu filed suit O.S.No.25 of
1995; that after dismissal of suit, he also filed appeal
A.S.No.94 of 2000 on the file of District Judge, Kadapa and
later, the matter was settled before Lok Adalat on 06.10.2010
and therefore, the suit schedule properties were self-
acquisitions of father Subba Naidu and later registered
partition was effected between father and 3rd defendant on
18.05.2005 and hence, the plaintiff cannot succeed to the
properties even by amendment to Section 6 of Hindu
Succession Act and thus, prayed to reject the plaint. 6
7. 1st Respondent/plaintiff filed counter and opposed the
application. It was contended that amendment to Section 6 of
the Hindu Succession Act came into force from 09.09.2005
and there is an exception or rider to the proviso that if the
properties are divided among the male members, female
members will not have share in the properties. It was
contended interalia that respondent/plaintiff came to know
about partition deed only after obtaining encumbrance
certificate dated 16.04.2021; that as per the judgment of the
Apex Court in Vineeta Sharma Vs. Rakesh Sharma and
others1, daughter is also conferred right as coparcener in her
own right and in the same manner as son. The said provision
is declared as retroactive and as per proviso to Section 6 of
the Hindu Succession Act, any dispositions or alienations
taken place before 20.12.2004, the date on which the Bill was
presented in Rajya Sabha, shall not be invalidated. As per
the recitals in partition deed dated 18.05.2005, suit schedule
properties are described as ancestral properties and thus,
prayed to dismiss the petition.
1 2020 (5) ALD 49 (SC) 7
8. Trial Court by order dated 20.04.2022 dismissed the
application. Aggrieved by the same, the above revision is filed.
9. Heard Sri G.Ramesh Babu, learned counsel for revision
petitioners and Sri E.V.V.S.Ravi Kumar, learned counsel for
1st respondent/plaintiff.
10. Learned counsel for revision petitioners would submit
that claim made by the plaintiff, ie relief sought for in the
suit, is barred by limitation and hence, the plaint is liable to
be rejected under Order VII Rule 11 of CPC. He would submit
that going by the plaint averments, partition took place on
18.05.2005, prior to amendment to Section 6 of the Hindu
Succession Act, and hence, the suit is liable to be rejected.
He would also submit that trial Court did not consider Article
59 of the Limitation Act in proper perspective. Learned
counsel relied on the judgment of the Apex Court in Rajendra
Bajoria and Ors. Vs. Hemant Kumar Jalan and Ors2.
11. Learned counsel for 1st respondent/plaintiff supported
the order of the trial Court.
2 AIR 2021 SC 4594 8
12. The scope of revision under Article 227 of the
Constitution of India is detailed by the Apex Court in Surya
Dev Rai V. Ram Chander Rai and others3. The ratio laid
down in the above case has been followed in latter
judgements.
13. Article 227 deals with power of superintendence by the
High Court over all Subordinate Courts and Tribunals. The
power of superintendence conferred upon the High Court by
Article 227 is not confined to administrative superintendence
only, but includes the power of judicial review. The powers of
High Court under Article 227 are limited. The duty of this
Court is to see that the Courts shall not exceed its power that
is conferred on it or exercise power based on extraneous
material to pass any order and to keep the subordinate
courts within its bounds of jurisdiction.
14. High Court while exercising power under Article 227
can exercise its discretion to interfere in the following
circumstances:
(a) When the inferior court assumes jurisdiction erroneously in excess of power.
3
(2003) 6 SCC 675 9
(b) When refused to exercise jurisdiction.
(c) When found an error of law apparent on the face of record.
(d) Violated principles of natural justice.
(e) Arbitrary or capricious exercise of authority or discretion.
(f) Arriving at a finding which is perverse or based on no material.
(g) A patent or flagrant error in procedure.
(h) Order resulting in manifest injustice and
(i) Error both on facts and law or even otherwise.
15. Keeping in view the scope of revision, this Court must
see whether the order passed by the trial Court brooks
interference under Article 227 of the Constitution of India.
16. In an application under Order VII Rule 11 of CPC, to
reject the plaint, the Court has to see the averments in the
plaint alone. Limitation is a mixed question of fact and law
and hence, the Courts should be very careful while dealing
with the aspect in rejecting the plaint by invoking Order VII
Rule 11 of CPC.
17. In Saleem Bhai and others Vs. State of Maharashtra
and others4, the Apex Court held thus:
"9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for
4 (2003) 1 SCC 557 10
deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non- exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects."
18. In Sopan Sukhdeo Sable and others Vs. Assistant
Charity Commissioner and others5, the Apex Court held
thus:
"15. There cannot be any compartmentalization, dissection, segregation, and inversions of the language of various paragraphs in the plaint. If such a course is adopted, it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities."
5
(2004) 3 SCC 137 11
19. Suit is filed seeking partition of plaint schedule
properties. One of the daughters being the plaintiff filed suit
against mother, sisters, brothers, brother's wife and other
purchasers. Averments in the plaint are to the effect that
plaint schedule properties are ancestral properties of
Govindaiah Naidu, paternal grandfather. Plaintiff's father and
paternal uncle got the properties after death of paternal
grandfather. The plaintiff's father, defendants 2 and 3 are
jointly enjoying the schedule properties. In the plaint, it was
contended that when the plaintiff verified encumbrance
certificate dated 16.04.2021, she came to know about the
transaction and also registered partition deed between father
and 3rd defendant and according to plaintiff, she being
coparcener, it does not bind her.
20. In this connection, it is appropriate to refer the
judgment of the Apex Court in Salim D. Agboatwala and
Ors. Vs. Shamalji Oddhavji Thakkar and Ors.6, it was held
thus:
"Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to emphasis that limitation is a mixed question of fact and law.
6
AIR 2021 SC 5212 12
Again as pointed out by a three member bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422, the plea regarding the date on which the Plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold."
21. Thus, going by the averments in the plaint, plaintiff
contended that she came to know about the transaction only
after obtaining encumbrance certificate dated 16.04.2021
and rejecting the plaint by invoking Order VII Rule 11 of CPC
at this stage is not appropriate. Apart from the plaintiff
pleaded that suit schedule properties are ancestral and joint
family properties. Without evidence on record, it is very
difficult to the Court to decide as to the nature of properties
as to ancestral, joint family or separate properties or
plaintiff's right is extinguished etc.,
22. The other contention of the defendant is about
alienations made prior to filing of the suit. In this connection,
it is pertinent to mention here that plaintiff need not ask for
cancellation of alienations made by defendants. In
S.Ramachari and Ors. Vs. Trishala infrastructure Pvt. 13
Ltd., rep. by its Director Susheel Kumar Jain and Others7,
the High Court of Telangana held thus:
"It is settled that a suit for partition, without a prayer for cancellation of sale deeds executed by coparceners of plaintiff without authority, is maintainable"
23. In view of the above authoritative pronouncements, the
plaint in O.S.No.7 of 2021 shall not be rejected on the
grounds referred to supra at the threshold. The facts of the
case in Rajendra Bajoria's case are different and hence the
judgment may not help the case revision petitioner. Thus, the
order of the trial Court dismissing the application does not
call for interference of this Court under Article 227 of the
Constitution of India.
24. Accordingly, the Civil Revision Petition is dismissed at
the stage of admission. No order as to costs.
As a sequel, all the pending miscellaneous applications
shall stand closed.
_________________________ SUBBA REDDY SATTI, J
1st November, 2022
PVD
7 2021 SCC OnLine TS 1809 = 2021 (4) ALT 383
