Karnataka High Court
Smt. Gowramma vs Sri. N. Venkateshwamappa on 17 March, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL.NO.925 OF 2019(PAR)
BETWEEN:
SMT. GOWRAMMA
W/O LATE BASAPPA
D/O LATE BANDE MUNISHAMAPPA
(SINCE DEAD REPRESENTED BY LEGAL
REPRESENTATIVE)
1(a). SMT. RATHNAMMA
W/O NARAYANASWAMY,
AGED ABOUT 62 YEARS,
R/AT NO.357, 3RD CROSS, 3RD MAIN,
ANANDAGIRI LAYOUT, NEAR POLICE QUARTERS,
HEBBAL, BENGALURU-560 024.
...APPELLANTS
(BY SRI. V.F.KUMBAR, ADVOCATE FOR APPELLANT (VC))
AND:
1. SRI. N. VENKATESHWAMAPPA
S/O LATE NARAYANAPPA
AGED ABOUT 61 YEARS,
RESIDING AT NO.70,
1ST MAIN ROAD, RIGHT SIDE,
BHUVANESHWARINAGAR,
R T NAGAR POST,
BENGALURU-560 032
2
2. SRI SRINIVAS N
S/O LATE NARAYANAPPA
AGED ABOUT 59 YEARS,
R/AT NO.61,
CHOLANAYAKANAHALLI
NEAR BASAVESHWARA TEMPLE
R T NAGAR POST
BENGALURU-560 032
3. SRI GOPALA N
S/O LATE NARAYANAPPA
AGED ABOUT 57 YEARS,
R/AT NO.5
BHUVANESHWARINAGAR
SULTHANPALYA MAIN ROAD,
R T NAGAR POST
BENGALURU-560 032
4. SMT BHAGYAMMA
W/O M V PADMAMMA
D/O LATE NARAYANAPPA
AGED ABOUT 55 YEARS,
R/AT NO.102/1,
MANONARAYANAPALYA
NEAR VENKATESHWARA
TEMPLE, BENGALURU-32
5. SRI RAJANNA N
S/O LATE NARAYANAPPA
AGED ABOUT 53 YEARS,
R/AT NO.2ND CROSS,
ANNA MARIYA PUBLIC SCHOOL
BHUVANESHWARINAGAR
SULTHANPALYA MAIN ROAD,
R T NAGAR POST
BENGALURU-560 032
6. SMT JYOTHY
W/O NAGARAJ N
AGED ABOUT 43 YEARS,
3
7. KUMARI MEGHANA
D/O NAGARAJ N
AGED ABOUT 22 YEARS,
8. MASTER YAHSEEK
S/O NAGARAJ N
AGED ABOUT 17 YEARS,
SINCE MINOR REPRESENTED
BY HIS NATURAL GUARDIAN
SMT JYOTHI THE DEFENDANT NO.6 HEREIN
DEFENDANT NO.6 TO 8 ARE RESIDING AT
NO.5 BHUVANESHWARI NAGAR
SULTHANPALYA MAIN ROAD,
R T NAGAR POST
BENGALURU-560 032.
9. SMT RAMAKKA
W/O SRI RAMESH
D/O LATE NARAYANAPPA
AGED ABOUT 49 YEARS,
R/AT 2ND CROSS
ANNA MARIYAPPA PUBLIC SCHOOL
BHUVANESHWARINAGAR
SULTHANPALYA MAIN ROAD,
R T NAGAR POST
BENGALURU-560 032.
10 . SRI KRISHNAPPA @ RAMAKRISHNAPPA
S/O LATE NARAYANAMMA @ M NANJAPPA
AGED ABOUT 60 YEARS,
R/AT THIRUMENAHALLI
MANDOOR POST
BIDARAHALLI HOBLI
BANGALORE EAST TALUK.
11 . SMT PARVATHAMMA
W/O VEERASONNAPPA
4
D/O LATE NARAYANAMMA @ M NAJAPPA
AGED ABOUT 58 YEARS,
R/AT MALLIMAKANAPURA
NANDAGUDI HOBLI
BEGURU POST, HOSAKOTE TALUK.
12 . SMT JYOTHAMMA @ JYOTHI
W/O THAMMANNA
D/O LATE NARAYANAMMA
& M NANJAPPA
AGED ABOUT 56 YEARS,
R/AT NO.635/18,
SRI NILAYA 2ND CROSS,
2ND MAIN DHD MEGHA ARTS
KODIGEHALLI
BANGALORE-560 092.
13 . SMT SUSHEELAMMA
W/O LATE DYAVAPPA
D/O LATE NARAYANAMMA
& M NAJAPA
AGED ABOUT 52 YEARS,
R/AT NO.317,
TATA NAGAR 5TH MAIN
KODIGENAHALLI POST
BENGALURU-560 094.
14 . SMT ERAMMA
W/O LATE APPAJI
D/O LATE NARAYANMMA
@ M NANJAPPA
AGED ABOUT 50 YEARS,
R.AT MALLIMAKANAPURA
NADAGUDI HOBLI
BEGUR POST
HOSAKOTE TALUK.
15 . SRI ERANNA @ EREGOWDA
S/O LATE NARAYANAMMA
5
@ B M NANJAPPA
AGED ABOUT 49 YEARS,
R/AT THIRUMENAHALLI
VILLAGE, MANDOOR POST
BIDARAHALLI HOBLI
BENGALURU EAST TALUK.
16 . SRI NANJUNDAPPA @ NANJUNDA
S/O LATE NARAYANAMMA @ M NANJAPPA
AGED ABOUT 47 YEARS,
R/AT NO.16, 16TH CROSS,
5TH MAIN , N N FARM
GEDDALAHALLI
BENGALURU-560 094.
17. SMT. MANJULA
W/O LATE NARAYANASWAMY,
AGED ABOUT 45 YEARS,
18. SRI. MAHESH KUMAR
S/O LATE NARAYANASWAMY
AGED ABOUT 22 YEARS,
19. SMT. SAROJA,
W/O MUNEGOWDA,
AGED ABOUT 58 YEARS,
RESPONDENT NO.17 TO 19
ARE RESIDING AT
NO.575, NEAR ELU MANDYAMMA TEMPLE,
CHOLANAYAKANAHALLI,
R.T.NAGAR POST,
BENGALURU-560032.
...RESPONDENTS
(BY SRI. P.M.NARAYANA SWAMY ADV.
FOR R2, AND R5, R1, R3, R4, AND
R6 TO R9 (PH),
R17, R18 AND R19 ARE SERVED)
6
THIS R.F.A. IS FILED UNDER SECTION 96 OF CODE
OF CIVIL PROCEDURE, 1908 AGAINST THE ORDER
DATED 06.02.2019 PASSED ON I.A. IN
O.S.NO.8578/2016 ON THE FILE OF LXVI ADDL. CITY
CIVIL AND SESSIONS JUDGE, BANGALORE CITY,
ALLOWING THE I.A. FILED UNDER ORDER 7 RULE 11(d)
OF CPC FOR REJECTION OF PLAINT.
THIS R.F.A. COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The captioned regular first appeal is filed by the
plaintiff questioning the order dated 06.02.2019 passed by
the learned Judge in O.S.No.8578/2016, wherein the suit
filed by the appellant/plaintiff is rejected under Order VII
Rule 11(d) of CPC. It is this order, which is under
challenge.
2. The original plaintiff Smt. Gowramma, who
claims to be the daughter of one Bande Munishamappa,
filed a suit for partition and separate possession in
O.S.No.8578/2015 by specifically contending that the suit
schedule properties are ancestral and joint family
properties and there was no partition. She also specifically
contended that defendant Nos.1 to 9 are acting adversely
to the interest of the plaintiff. The original plaintiff also
specifically contended that she being the class I heir of
Bande Munishamappa is entitled for 1/3rd share in the suit
schedule properties. It is specifically contended that she
along with defendants are in joint possession and
enjoyment of the suit schedule properties and therefore,
she has claimed her legitimate share in the suit schedule
properties.
3. On receipt of summons, the
respondents/defendants have entered appearance and
filed their written statement. The respondent Nos.1 to 9
have filed an application under Order 7 Rule 11(d) of CPC
seeking for rejection of plaint. By fling the said application,
it appears that respondents Nos.1 to 9 have placed
reliance on registered partition deed. The respondent
Nos.1 to 9 have sought rejection of plaint on the ground
that there is a partition in the family under registered
partition deed dated 07.06.2004. Therefore, respondent
Nos.1 to 9 contented that there is a sale before
amendment is brought to Section 6 of Hindu Succession
Act, 2005, the said partition is fair and therefore sought for
rejection of plaint under Order VII Rule 11(d) of CPC. At
paragraph No.5 of the application, the respondents also
contended that pursuant to partition between
Narayanappa, who is the son of the said Bande
Munishamappa and grand children, there is already sale
and therefore the present suit is not at all maintainable. To
corroborate the averments made in the affidavit filed in
support of application under Order VII Rule 11(d) of CPC,
it appear the respondent Nos.1 to 9 have also placed on
record the registered partition deed.
4. Learned Judge, while taking note of the
registered partition deed between Narayanappa and his
children has come to conclusion that suit properties are
not available for partition as on the date of filing of suit
and therefore, the learned Judge proceeded to reject the
plaint by invoking the provision of Order VII Rule 11(d) of
CPC.
5. Heard the learned counsel appearing for
appellants/plaintiffs and learned counsel appearing for
respondent Nos.1 to 9/defendant Nos.1 to 9. Perused the
records.
6. The following point would arise for
consideration.
Whether the trial Court erred in rejecting the
plaint by invoking the provision under Order VII Rule
11(d) of CPC by referring to the averments made in
the affidavit filed in support of application, which is
filed under Order VII Rule 11(d) of CPC and also
taking judicial note of the registered partition deed,
which was produced along with the application.
7. While answering the issue, the Trial Court has
observed at page No.13, which reads as under:
"Learned advocate for defendant No.1 also
produced copy of Registered partition deed dated
06.07.2014, copy of sale deed dated 19.01.2001, copy
of sale deed dated 09.10.2002, copy of sale deed dated
31.07.2003. Hence in the view of the above case laws as
well as facts and circumstances of the case defendant
Nos. 1 to 9 has clearly made grounds for rejection of
plaint. Because as on the date of filing the suit father of
Plaintiff is not alive and suit schedule properties are also
not available for partition as on the date of filing the
suit. Under these circumstances this court hold Point
Nos. 1 and 2 in the Affirmative".
8. If the said culled out portion of the order is
examined, this Court finds that the reasons assigned by
the learned Judge is contrary to the settled proposition of
law. Order 7 Rule 11 CPC makes it clear that the relevant
facts which needs to be looked into for deciding an
application thereunder are the averments in the plaint.
The Court can exercise power under Order 7 Rule 11 CPC
at any stage of the suit before registering the plaint or
after registering the summons by the defendants at any
time before conclusion of the trial. For the purpose of
deciding an application under clauses (a) and (b) 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.
Perusal of Order 7 Rule 11 shows that plaint can be
rejected only if it appears from the statement in the plaint
to be barred by any law. Even if the expressions of the
statement in the plaint is given a liberal meaning,
documents filed in the plaint may be looked into but
nothing more. It is a trite law that Court must give a
meaningful reading to the plaint and if it is manifestly
vexatious or meritless in the sense of not disclosing a clear
right to sue, the Court may exercise its power under Order
7 Rule 11 of CPC. Therefore, the Court while considering
an application under Order 7 Rule 11 cannot take out
submissions in the plaint in isolation but has to conduct a
meaningful reading of the plaint. If the Court concludes
that suit claims are barred by law, it has no option but to
reject the plaint. The power to reject a plaint or to retain
it for amendment should not be exercised except in a clear
case. If there is any serious question to be decided, the
proper course is to let the suit proceed with trial and then
determine the matter on merits.
9. The Hon'ble Apex Court in the case of Saleem
Bhai vs. State of Maharashtra1 has held that matter is
to be decided only on the averments made in the plaint.
The Hon'ble Apex Court was also of the view that for the
purpose of deciding an application under Order 7 Rule
11(a) and (d), averments in the plaint are germane. Pleas
taken by the defendant in the written statement would be
wholly irrelevant at that stage. Therefore, what emerges is
that the disputed questions cannot be decided at the time
of considering an application under Order 7 Rule 11 of
CPC.
10. However, on perusal of the order under
challenge, this Court would find that the learned Judge has
virtually taken cognizance of the documents relied by the
defendants and also relied on the averments made in the
affidavit filed along with application under Order VII Rule
11(d) of CPC, which is impermissible under law. While
considering the rejection of plaint, averments in plaint has
to be looked into and the Court cannot travel beyond the
AIR 2003 SC 759
pleadings, which are averred in the plaint. It is only
admitted set of pleadings in the plaint which have to be
tested and if any part of the pleadings in the plaint attracts
the provisions of order VII Rule 11 of CPC, the Court, after
cautiously examining the consequences, can proceed to
reject the plaint. This exercise is found missing in the
present case on hand.
11. It is quite unfortunate to see that the learned
Judge very casually rejected the plaint by taking note of
the registered partition deed produced by defendant Nos.1
to 9. Even otherwise, this Court would find that registered
partition deed is executed between Narayanappa and his
legal heirs. Therefore, what can be gathered from the
registered partition deed set up by the defendants is that
the partition is not effected between father and son but
inter se between Narayanappa and his legal
representatives. After the death of Bande Munishamappa,
succession would open and therefore, the daughters too
have an independent right under Section 8 of Hindu
Succession Act.
12. The next question that ought to have been
examined by the learned Judge was, whether the property
falls under the purview of Section 6 or Section 8 of Hindu
Succession Act and whether the daughters who are
conferred status of co-parceners can be given the benefit
of amended provisions of Section 6 of Hindu Succession
Act by treating the daughters as coparceners. All these
significant details are to be examined only by way of full
fledged trial. Therefore, the rejection of plaint by the Court
below has resulted in miscarriage of justice. The Court
below could not have summarily rejected the plaint by
taking cognizance of pleadings of defendants and also
documents.
13. In that view of the matter, the impugned order
is not sustainable. Accordingly, point formulated above is
answered in affirmative. Consequently, appeal is allowed.
The matter is remitted back to the Court below with a
direction to relegate the parties to lead their evidence in
support of their contention. Since both the parties are
represented by their counsel, without expecting further
summons by the Court, the parties are directed to appear
before the trial Court on 23.05.2022.
Sd/-
JUDGE
NMS
