Delhi High Court

Ms. Ilaria Kapur vs Sh. Rakesh Kapur & Ors. on 28 May, 2012

Author: Reva Khetrapal

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) 1353/2009


MS. ILARIA KAPUR                                      ..... Plaintiff
                               Through:   Ms. Mala Goel, Advocate
                                          along with plaintiff in person.

                      versus


SH. RAKESH KAPUR & ORS                             ..... Defendants
                  Through:                Defendant No.1 in person.
                                          Mr. Vinod Tyagi, Advocate for
                                          the defendant No.3.


%                              Date of Decision : May 28, 2012

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

                               JUDGMENT

: REVA KHETRAPAL, J.

IA No.5634/2011 (under Order VII Rule 11 CPC filed by the defendant No.3)

1. By way of this application filed under Order VII Rule 11 CPC,

the applicant, the defendant No.3, alleges that the plaint does not

disclose any cause of action qua the defendant No.3 and being barred

by Hindu Law as well as the provisions contained in the Hindu

Succession Act, 1956, the Hindu Minority and Guardianship Act,

1956, the Guardians and Wards Act, 1890, the Specific Relief Act,

1963 and the Benami Transactions (Prohibition) Act, 1988, deserves

rejection at the threshold.

2. The aforesaid application is predicated on the contention of the

defendant No.3 that she being a woman cannot be a coparcener in the

HUF of her husband/sons and, therefore, the properties owned by her

cannot be termed as HUF properties belonging to or vesting in the

coparcenary comprising of her husband and her sons, as the law does

not permit her to blend her properties with the HUF properties. It is

asserted by the defendant No.3 that all the properties, owned and

possessed by her are protected by the Hindu Women's Right to

Property Act, 1937, the Benami Transactions (Prohibition) Act, 1988

and the Hindu Succession Act, 1956 and in view thereof, the suit is

barred within the meaning of Rule 11(d) of Order VII of the Code of

Civil Procedure.

3. It may be noted that the suit in which the aforesaid application

is filed is a suit for partition, rendition of accounts, etc., filed by the

plaintiff, minor Hindu female through her next friend, her mother, Ms.

Sapna Kapur. The mother of the plaintiff and the defendant No.1,

who is the father of the plaintiff, though have a continuing and

subsisting marriage, are involved in multifarious litigation, to which it

is not deemed necessary to advert at this juncture. Suffice it to say

that there are allegations and counter-allegations. Several orders have

been passed in the ongoing litigation between the parties from time to

time by various Courts including the Guardianship Court.

4. As delineated in the plaint, the case of the plaintiff is that the

plaintiff and the defendants are Hindus governed by Mitakshara law.

Late Major Kailash Chander Kapur (Retd.), his wife Ms. Ritu Kapur

(the defendant No.3) and their two sons Mr. Rakesh Kapur (defendant

No.1) and Mr. Ravi Kapur (defendant No.2) constituted a Hindu

Undivided Family, which resided together at B-103, Som Vihar

Apartment, R.K. Puram, Delhi. Their family business commonly

known as "Ace Detectives India" was started in 1984 as a private

detective agency and over a period of time other family businesses

sprung up including M/s. International Security, M/s. Ace Consultants

and M/s. Absolute Security Pvt. Ltd. The joint family acquired

several properties in Delhi, Gurgaon and Punjab from the funds

generated with the joint labour and efforts of the defendant Nos.1 and

2 and of their late father. Some properties were purchased and

acquired in the name of Major Kailash Chander Kapur; others in the

names of the defendant Nos.1, 2 and 3. A list of the vast immovable

and movable assets of the Hindu Joint Family is filed with the plaint

as Annexure-A.

5. It is further averred in the plaint that on the death of Major

Kailash Chander Kapur on 29.06.2007, according to the plaintiff, the

share of the defendant Nos.1 to 3 in the joint family properties was

1/4th each. The 1/4th share of Major Kailash Chander Kapur, as he

died intestate, is also to be divided amongst the defendant Nos.1 to 3,

each getting 1/3rd share in the 1/4th share of Major Kailash Chander

Kapur. The plaintiff, who is the minor daughter of the defendant

No.1, thus, claims to have right and interest in the joint family assets

by virtue of her birth to the extent of 1/3rd share in the 1/4th share of

the defendant No.1 in the HUF assets; as well as 1/3rd share in the

1/3rd share of the defendant No.1 in the 1/4th share coming to him from

his father, i.e., grandfather of the plaintiff. The defendants having

denied the plaintiff's right, the present suit for partition has been

instituted by her claiming her rightful share in the HUF properties.

6. In the present application filed by the defendant No.3, it is

asserted that the properties set out in the plaint are owned by the

defendant No.3, and cannot form subject matter of partition in a suit

for partition of properties of the HUF, as property belonging to a

female Hindu cannot be termed as the property of the HUF

comprising of her husband, sons, grandsons or

daughters/granddaughters nor her properties can blend into the HUF

properties.

7. In paragraph 11 of the application it is stated that the defendant

No.3 is the owner of the following properties:-

           S. No.         Property                 Status
           1.     B-103, Som Vihar             Residing
           2.     C-1/1682, Vasant Kunj        Sold       on
                                               30.11.2004
           3.         B-2/2059, Vasant Kunj    Still holding
                                               it.
           4.         28, Vasant Apartments    Sold       on
                                               24.03.2008
           5.         271, Vasant Apartments   Sold       on
                                               14.07.2008
           6.         Birch Court-38, Nirwana  Still holding
                                               it.
           7.         Aspen Garden-26, Nirwana Still holding



                                                    it.

           8.         A-3/1502, Uniworld City  Sold       on
                                               18.12.2006
           9.         Re-107, EWS, Ridgewood Still holding
                      Estate                   it.
           10.        C-701, Sun City          Still holding
                                               it.
           11.        801, T-6, Orchid Petals  Sold       on
                                               09.02.2008
           12.        50% share in B-601, Park Still holding
                      View                     it.

It is urged that just as a grandson cannot seek partition of joint

family properties from his grandfather during the lifetime of his father

and as long as his father and his brothers, etc. are not separated or are

united, a granddaughter (the plaintiff in the instant case) is also not

entitled to seek partition of the joint family properties of her

grandfather during the lifetime of her father (the defendant No.1). In

any case, there is no legal necessity for the plaintiff to seek partition of

her alleged share in the properties of the HUF of the parties and,

therefore, it cannot be said that the partition of the properties is likely

to be for the benefit of the minor or for the advancement of her

interest. It is also asserted in the application that the mother of the

plaintiff cannot act as guardian/next friend in respect of the minor's

undivided interest in the joint family properties by virtue of the

provisions of Section 6 of the Hindu Minority and Guardianship Act,

1956. Section 12 of the said Act provides that no guardian be

appointed by the Court for the minor's undivided interest in the joint

family properties. By virtue of the provisions of Section 8 of the said

Act and Section 29 of the Guardian and Wards Act, the guardian can

in no case bind a minor by a personal covenant in respect of

fluctuating indefinite interest in her alleged joint family properties.

8. Mr. Vinod Tyagi, the learned counsel for the defendant No.3, in

the course of hearing of the present application contended that it is

settled law that a coparcenary consists of only male members of a

family, lineally descended from a common ancestor, who acquire by

birth an interest in the HUF properties, and though the daughter of a

coparcener has now been held entitled to the coparcenary property by

virtue of the Hindu Succession (Amendment) Act, 2005, (with effect

from 09.09.2005), the wife or mother of the coparceners/male

members of a Joint Hindu Family governed by Mitakshara Law are

not included as coparceners in the coparcenary of any HUF as they do

not acquire by birth any interest in the HUF properties. The only right

given to a female Hindu wife/mother is that on partition of the HUF

properties, she gets a share in the joint family property, equal to the

share of her husband. Thus, the properties owned by the defendant

No.3 cannot be termed as property of the HUF of her husband and

their sons/grandsons or daughters/granddaughters. Resultantly, the

plaintiff in the present case cannot be permitted to urge that the

properties owned and possessed by the defendant No.3 are the

properties of the Hindu Undivided Family and the plaintiff being the

granddaughter of the defendant No.3 has any right or interest in the

said properties.

9. In order to buttress his aforesaid contention, Mr. Tyagi relied

upon the decisions rendered in Commissioner of Income-Tax vs. Smt.

Pushpa Devi, ILR (1971) 1 Delhi 292; Padma Lal Chand

Mirchandani vs. The Commissioner of Income Tax (Delhi II), ILR

(1979) Delhi 295 (DB); Smt. Pushpa Devi vs. The Commissioner of

Income Tax, New Delhi, AIR 1977 SC 2230 and Raju and Anr. vs.

Muthuammal and Ors., AIR 2004 Madras 134 to contend that a

female Hindu not being a coparcener cannot blend her separate

property with joint family property. Whether that separate property is

her absolute property or whether she has a limited estate in that

property would make no difference. He pointed out that in Pushpa

Devi's case (supra), the Supreme Court relied upon its earlier decision

rendered in Mallesappa Bandeppa Desai and Ors. vs. Desai

Mallappa and Ors., AIR 1961 SC 1268, and in the said case,

Gajendragadkar J. (as His Lordship then was) made the following

apposite observations:-

"The rule of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate property of his own may by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property. If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes a part of the joint family estate; in other words, the separate property of a coparcener loses its separate character by reason of the owner's conduct and gets thrown into the common stock of which it becomes a part. This doctrine therefore inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property."

10. Reference was also made by Mr. Tyagi to the recent judgment

of the Supreme Court rendered in Gangamma and Ors. vs. G.

Nagarathnamma & Ors., 2009 (15) SCC 756, in which the Supreme

Court, while discussing the scope and ambit of Section 14 of the

Hindu Succession Act, held that Section 14(1) of the Act contemplates

that a female Hindu, in the absence of any evidence to the contrary, is

the full owner of the properties acquired or possessed by her. Such

female Hindu will have all powers and disposition to make the estate

heritable by her own heirs and not revertible to the heirs of the last

male holder. Thus, the rights conferred under Section 14(1) to a

Hindu female are not restricted or limited by any rule of Hindu Law.

It was also contended by the learned counsel for the defendant No.3

that the present suit is thus barred by the provisions of the Benami

Transactions (Prohibition) Act, 1988. In this context, he relied upon

the decision rendered in Rameshwar Mistry and Anr. vs. Bebulal

Mistry, AIR 1991 Patna 53, wherein it was held:-

"36. An acquisition of property in the name of his wife of a coparcener by the joint family will, in my opinion, constitute a benami transaction and will not be saved under S. 3(2) of the said Act.

From a bare perusal of S. 4(3) of the said Act, it is evident that even such a case is not protected thereunder."

11. Reliance was also placed by Mr. Tyagi on the decision of this

Court in Smt. Santosh Malik vs. Shri Maharaj Krishan and Anr., 82

(1999) DLT 862, in which it was noted there is now a plethora of

precedents to the effect that the Benami Transactions (Prohibition)

Act of 1988 would apply, on a construction of the explicit language of

Section 4(1) of the Act, to every suit filed after the coming into effect

of the Act, even if the transaction is for a period prior to the passing of

the Act. The plaint in the said case was rejected as barred under

Section 4(1) of the Act.

12. In order to rebut the aforesaid contentions of Mr. Tyagi, the

counsel for the plaintiff, Ms. Mala Goel at the outset contended that it

is settled law that the provisions of Order VII Rule 11(d) of the Code

of Civil Procedure have limited application. It must be shown that the

suit is barred under law and such a conclusion must flow from the

averments made in the plaint. The issues on the merit of the matter

which may arise between the parties would not be within the realm of

the Court at that stage. It has been so held by the Supreme Court time

and again and specifically reiterated in the decisions of the Supreme

Court rendered in Kamala & Ors. vs. K.T. Eshwara Sa & Ors., AIR

2008 SC 3174 and Mayar (H.K.) Ltd. and Ors. vs. Owners & Parties,

Vessel M.V. Fortune Express and Ors., (2006) 3 SCC 100.

13. Ms. Goel contended that more than eight decades ago the

Lahore High Court in the case of Sanwal Das vs. Kuremal and Ors.

reported in AIR 1928 Lahore 224 had laid down that in the case of a

Joint Hindu Family, purchase of property in the name of one or other

member of the family is immaterial. If once the family is proved to be

joint, it is a matter of absolute indifference whether the name of one or

the other member of the family appears in a particular document. Ms.

Goel contended that the said law holds good till date, unless evidence

to the contrary is adduced and it is established otherwise. Referring to

paragraph 14 of the written statement, Ms. Goel contended that the

defendant No.3 had categorically admitted the existence of the Hindu

Undivided Family, but pleaded dissolution thereof on the death of

Major Kailash Chander Kapur, on which date the defendant No.3

states there were three assets of the HUF which have been sold by her

as she became sole owner and the HUF no longer existed. The case of

the plaintiff is that the HUF continues to exist, as there cannot be

dissolution as alleged by the defendant No.3. Further, Ms. Goel

pointed out that the alternative contention of the defendant No.3 in her

written statement is that the properties were the self acquired

properties of Major Kailash Chander Kapur and he left a registered

Will dated 04.11.2004 in favour of the defendant No.3 and thus, the

properties are not HUF properties. Apart from the fact that the

aforesaid two pleas taken in the written statement are contradictory to

each other and, therefore, incapable of standing together, Ms. Goel

contended that in either event, it will be a matter of evidence to be

adduced by the parties as to whether the HUF is in existence or not

and which of the properties vested in the HUF.

14. Rebutting the contention of Mr. Tyagi that under Mitakshara

Law a minor cannot claim share in the HUF properties in her father's

lifetime, Ms. Goel contended that it is now settled law that a son or

daughter can ask for partition of HUF property from the father during

his lifetime. It was so held by the Division Bench of this Court in the

case of Nanak Chand and Ors. vs. Chander Kishore and Ors., AIR

1982 Delhi 520 = 22 (1982) DLT 11 SN(DB). Paragraph 14 of the

said decision reads as follows:-

"(14) The other contention that came up for consideration was whether in the life time of the father, the sons could ask for partition or not. At one time a view was prevalent that in Delhi like Punjab they could not do so. It was based upon some custom, vide Hari Kishan v. Chander Lal & others, AIR 1918 Lahore 291(21) and Sri Ram v. Collector, AIR 1942 Lahore 183. But since the decision of this court of 22-10-1967 in Khushwant Rai v. Dr. Jagmohar Lal RFA 1-D/59 and 24-D of 1959 (22), it is now no more in controversy that the son can ask for partition from the father during his life time. We do not, therefore, propose to dilate any more on this issue."

15. The decision rendered in Nanak Chand's case (supra) was

subsequently followed by this Court in the case of Rajinder Kumar

Khanna & Ors. vs. R.K. Bajaj & Ors., 1993 (3) Current Civil Cases

127, wherein it was held:-

"14. The contention of Mr. Lekhi that the son cannot claim partition during the life time of his father has no force in view of the decision of this court in the case of Nanak Chand and Others v. Chander Kishore, AIR 1982 Delhi 520, wherein a Division Bench of this court held in Delhi a son can ask for partition of the Joint Hindu Family property from the father during his life time .................."

16. Responding to the contention of Mr. Tyagi that the suit was

barred by the provisions of Section 4 of the Benami Transactions

(Prohibition) Act, 1988, Ms. Goel contended that a Joint Hindu

Family consists of all persons lineally descended from a common

ancestor and includes their wives and unmarried daughters. Hindu

coparcenary is a narrower body than the joint family and includes only

those persons who acquire by birth an interest in the joint or

coparcenary property. Section 4 of the Benami Transactions

(Prohibition) Act does not apply to HUF properties. In the instant

case, the defendant No.3 is a member of the HUF and also she is a

housewife. The property even if it is in the name of the defendant

No.3 continues to be HUF property and the plaintiff is entitled to her

share in the same.

17. In the alternative, Ms. Goel submitted that it is trite that it is

only the plaint read as a whole which can be looked into by the Court

for the purpose of exercising its powers under Order VII Rule 11 of

the Code of Civil Procedure. The learned counsel further urged that

as long as the plaintiff is able to prove that the nucleus for acquisition

of the said properties came from the HUF funds, the plaintiff must be

held entitled to a share in the same, since admittedly it is not the case

of the defendant No.3 that the properties are her self-acquired

properties or that she inherited the same from her parents' family or

that they constitute stridhan. On the contrary, she states that on the

death of her husband, the HUF stood dissolved and thereupon she sold

three of the HUF properties (vide Para 14 of the written statement).

The plea taken by her in the present application that they are her

properties is entirely contrary to the plea taken by her in the written

statement that on the death of her husband the HUF stood dissolved

and the properties devolved upon her. In any case, the veracity of the

said pleas can only be gauged after the parties have adduced their

respective evidence and the plaint, therefore, cannot be summarily

rejected at this stage.

18. Before embarking upon the merits of the respective contentions

of the parties, it deserves to be highlighted that the scope and ambit of

Order VII Rule 11 of the Code of Civil Procedure is a cabined and

limited one. As held in Kamala's case (supra), the conclusion that the

suit is barred under any law must be drawn from the averments made

in the plaint. Further, for invoking Rule 11(d) of Order VII, no

amount of evidence can be looked into. The issues on the merits of the

matter which may arise between the parties would not be within the

realm of the Court at that stage nor shall form the subject matter of an

order under the said provision. In the aforesaid decision which also

pertains to a partition suit, it was observed (AIR, page No.3179):-

"Whether any property is available for partition is itself a question of fact."

19. In the case of Kamala (supra), a suit was filed claiming

partition in the properties. After the passing of the preliminary decree,

no property was available for partition. The properties were possessed

by the co-sharers independenty in accordance with the respective

shares held by the co-sharers. Yet, the Supreme Court observed that

what would be the effect of a partition suit which had not been taken

to its logical conclusion by getting the properties partitioned by metes

and bounds is a question which cannot be gone into in a proceeding

under Order VII, Rule 11(d) of the Code. Whether any property is

available for partition is itself a question of fact. Identity of properties

which were subject matter of the earlier suit, vis-a-vis, properties

which were subsequently acquired and effect thereof was beyond the

purview of Order VII, Rule 11(d).

20. Adverting to the contention of the plaintiff that if once the

family is proved to be a Joint Hindu Family, it is a matter of absolute

indifference whether the name of one or the other member of the

family appears in a particular document by which some property is

purchased by the joint family, it is the case of the plaintiff that late

Major Kailash Chander Kapur, his wife (the defendant No.3) and his

two sons (the defendant Nos.1 and 2) constituted a Joint Hindu Family

and, as a matter of fact, in the written statement filed by the defendant

No.3 the existence of Major Kailash Chander Kapur HUF is admitted.

This leaves the Court with the vexed question as to whether the

properties held in the individual names of the defendant No.1, the

defendant No.2 and the defendant No.3 form part and parcel of the

said HUF, for, it is the contention of the plaintiff that the aforesaid

properties though standing in the individual names of the members of

the Hindu Undivided Family were jointly owned by the family, as the

said properties were purchased from the funds yielded from the joint

family business. This being the contention of the plaintiff and the

plaintiff having enclosed a list of Joint Hindu Family properties,

nucleus whereof was the generation of funds from the Joint Hindu

Family business, the Court is of the opinion that without the parties

marshalling their respective evidence on this aspect of the matter it

would be impossible to determine which of the aforesaid properties

are Joint Hindu Family properties and which are not.

21. Much emphasis has been laid on behalf of the defendant No.3

on the fact that under Hindu Mitakshara Law, a Hindu female may be

a member of a joint family but is not a coparcener and cannot blend

her separate property with the joint family property. Indubitably, the

Hindu coparcenary is a much narrower body than the joint family and

it includes only those persons who acquire by birth an interest in the

joint or coparcenary property. These are the three generations next to

the holder in unbroken male descent (see Mulla's Hindu Law, 14th

Edition, page 262, paragraph 213). A Hindu female is, therefore, not

a coparcener, though by virtue of the Hindu Succession (Amendment)

Act, 2005, with effect from 09.09.2005, in a Joint Hindu Family

governed by the Mitakshara Law, the daughter of a coparcener shall

by birth become a coparcener in her own right in the same manner as

the son. The aforesaid aspects of Hindu Law, however, have no

bearing on the present case where undeniably a Hindu Undivided

Family was in existence, which acquired huge properties from funds

generated from the Hindu Undivided Family business. It is not even

the case of the defendant No.3 that she was an earning member of the

family or that she had inherited property from her father's side of the

family or owned self-acquired properties. Had that been the case,

subject to her furnishing proof in this regard, the aforesaid properties

could be said to be her absolute properties by virtue of the provision

of Section 14 of the Hindu Succession Act, incapable of blending into

the properties of the Hindu Undivided Family.

22. The defendant No.3 has in her pleadings, i.e., the written

statement filed by her and the present application adopted shifting

stands which, though may not have a bearing upon the decision of the

present application, nevertheless deserve to be briefly noted. The

defendant No.3 states that on the death of her husband there was a

dissolution of the HUF comprising of her late husband and the

defendant Nos.1 to 3 and thereupon the properties of the HUF

devolved upon her, three of which properties she has already sold.

The manner in which they devolved upon her is not stated. She

further states that the properties mentioned in the plaint had devolved

upon her by virtue of a Will left behind by Major Kailash Chander

Kapur, though nowhere states that the said Will ever saw the light of

the day prior to the filing of the present suit. In the present

application, the statement made by her in paragraph 12 simply is that

she is the owner of all the twelve properties enumerated in the said

paragraph, though in what capacity it is again not clear. Whatever be

the position, the Court at this stage needs only to look at the assertions

made in the plaint and the assertions made in the plaint are that the

said properties are HUF properties and the plaintiff is entitled to a

share in the same. As held by the Supreme Court in Kamala's case

(supra), whether any property is available for partition is itself a

question of fact and must be determined on the anvil of the evidence

adduced by the parties. At the stage of consideration of an application

under Order VII Rule 11(d), issues on the merit of the matter would

not be within the realm of the Court.

23. As regards the contention of the defendant No.3's counsel that

the present suit for partition of the properties held in the names of the

defendant Nos.1 to 3 is hit by the Benami Transactions (Prohibition)

Act, 1988, the said plea is also devoid of substance. A "benami

transaction" is defined in Section 2(a), which reads as follows:-

"2(a) "Benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person."

24. Section 3 and 4 relate to the prohibition of benami transactions

and the prohibition of the right to recover property held benami. For

the sake of facility, the said Sections are reproduced hereunder:-

"3. Prohibition of benami transactions.- (1) No person shall enter into any benami transaction.

(2) Nothing in sub-section (1) shall apply to -

(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;

(b) the securities held by a -

(i) depository as a registered owner under sub-section (1) of section 10 of the Depositories Act, 1996;

(ii) participant as an agent of a depository."

"4. Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name

the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

(3) Nothing in this section shall apply,-

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."

25. As noted above, the contention of Mr. Tyagi is that the present

action to enforce rights in respect of the properties held benami

against the person in whose name the property is held, namely, the

defendant No.3 is hit by the aforesaid provisions of the Act. Ms.

Goel, on the other hand, relies upon sub-section (3) of Section 4 which

is in the nature of an exclusionary clause and excludes from the

operation of Section 4 such property as is held by a coparcener in a

Hindu Undivided Family for the benefit of the coparceners in the

family. The exception taken by Mr. Tyagi to this contention is that

the defendant No.3 is not a coparcener and, therefore, the exclusionary

clause [Section 4(3) of the Act] would not be applicable to her. He

heavily relies upon the decision of the Patna High Court in

Rameshwar Mistry's case (supra) and the decision of this Court in the

case of Santosh Malik (supra). The decision in Santosh Malik

(supra), in my opinion, does not further the case of the defendant

No.3 as the effect of Section 4(3) was not considered in the said case,

since the plaintiff was not a coparcener. The facts were altogether

distinguishable; the parties were siblings and it was claimed in the

plaint that each of the parties had a share in the suit property, which

however stood in the name of the defendant No.1. Insofar as

Rameshwar Mistry's case (supra) is concerned, the findings rendered

in the said case were rendered after a full-blown trial and cannot

possibly have any application to the present case at this stage. More

so, on account of the fact that in this case the plaintiff alleges that

properties standing in the respective names of the defendant Nos.1 and

2 (apart from those in the name of the defendant No.3) are to be taken

into consideration for the purpose of partition being HUF properties.

26. It is necessary to pause at this juncture to note that even

assuming the Court was inclined to accept the contention of the

defendant No.3 that the suit averments relating to her are hit by the

Benami Transactions (Prohibition) Act, it is not open to the Court to

reject the plaint as it is trite that only a part of a plaint cannot be

rejected under Order VII Rule 11. The law has been thus enunciated

by the Supreme Court in the case of Sopan Sukhdeo Sable and

Others vs. Assistant Charity Commissioner and Others, (2004) 3

SCC 137. The observations made in the said case which are apposite

to the present case are reproduced hereunder:-

"As noted supra, Order 7 Rule 11 does not justify rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with „striking out pleadings‟..........................."

27. In Sopan Sukhdeo (supra), the Court, in the context of an

application under Clause (d) of Rule 11 of Order VII with regard to

the manner in which the plaint is to be read for the purposes of the

aforesaid provision of law, laid down the following guidelines:-

"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."

28. In Sunila Wadhwan and Others vs. Perfect Drugs Limited and

Anr., 2007 DRJ 497, a learned Single Judge of this Court (Hon'ble

Mr. Justice Badar Durrez Ahmed) while dealing with an application

under order VII Rule 11 of the Code of Civil procedure filed on behalf

of the defendant No.2 for rejection of the plaint held that even

assuming that the suit against the defendant No.1 was not

maintainable, the suit was definitely maintainable against the

defendant No.2 and since the plaint could not be rejected in part, the

application could not be allowed and the suit would continue against

both the defendants.

29. As regards the contention of the defendant No.3 that the

plaintiff is not entitled to seek partition of the joint family properties

during the lifetime of her father, the following observations made by

the Hon'ble Supreme Court in the case of Kakumanu Pedasubhayya

vs. Kakumanu Akkamma, AIR 1958 SC 1042, are apposite:

"8. Under the Mitakshara law, the right of a coparcener to share in the joint family properties arises on his birth, and that right carries with it the right to be maintained out of those properties suitably to the status of the family so long as the family is joint and to have a partition and separate possession of his share, should he make a demand for it......

9. The law being thus settled as regards coparceners who are sui juris, the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend. Now, the Hindu law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the

court has to be satisfied that the action has been instituted for his benefit......"

30. The further contention raised on behalf of the defendant No.3

that there is no legal necessity for the plaintiff to claim partition and it

cannot be said that the partition is likely to be for the benefit of the

minor is being stated to be rejected. The plaintiff is a young child

who stands displaced in life on account of the tumultuous marriage of

her parents. The interests of the plaintiff, needless to state, are of

paramount importance and require to be safeguarded.

31. The contention that the plaintiff cannot sue through her mother

also appears to have been raised for the sake of raising the same. An

application has been filed by the mother of the plaintiff for suing as a

next friend being IA No. 9455/2009 in accordance with the provisions

of Order XXXII Rule 1 CPC, which is pending as on date. It is trite