Balarama S/O Late Indiramma vs N C Byatappa Since Deceased By His ...
2022 Latest Caselaw 5233 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 23RD DAY OF MARCH, 2022

                        BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

  REGULAR FIRST APPEAL NO.718 OF 2012 (DEC/PAR)

BETWEEN:

SRI.BALARAMA
S/O LATE INDIRAMMA
D/O LATE CHIKKA BYATAPPA
AGED ABOUT 46 YEARS
R/O NO.42, B.S. 5TH MAIN ROAD
SAMPANGIRAMA NAGAR
BENGALURU - 560 027

                                      ...APPELLANT

(BY SRI.R.K.GNYANESH, ADVOCATE
FOR SRI.B.K.SANJAY, ADVOCATE)

AND

N.C.BYATAPPA
SINCE DECEASED BY HIS LRS.,

1(A). N.B.SUBBALAKSHMI
      W/O GOPALA KRISHNA
      D/O LATE N.C.BYATAPPA
      R/O NO.292, DASARA BEEDI
      KALYAGATE
      MAGADI TOWN
      RAMANAGARA DISTRICT

1(B). GAYATHRI
      W/O RAJA GOPALA
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     D/O LATE N.C.BYATAPPA
     AGED ABOUT 54 YEARS
     R/O DEVANAGA STREET
     NELAMANGALA TOWN
     BENGALURU RURAL DISTRICT

1(C). PRABHAVATHI
      W/O SUBBAIAH M
      D/O LATE N.C.BYATAPPA
      R/O NO.247, 1ST MAIN, 2ND CROSS
      NEAR VIDYA SAGAR ENGLISH SCHOOL
      SHIVANAGAR
      WEST OF CHORD ROAD
      BENGALURU - 560 010

2.   N.C.LAKSHMI NARASIMHAIAH
     S/O LATE CHIKKA BYATAPPA
     AGED ABOUT 77 YEARS
     RETIRED DISTRICT AND SESSIONS JUDGE
     R/O NO.630, E 2ND MAIN ROAD
     R.P.C. LAYOUT
     VIJAYANAGAR 2ND STAGE
     BENGALURU - 560 040

3.   SMT.GEETHA
     D/O LATE INDIRAMMA
     AGED ABOUT 52 YEARS
     R/O NO.5, MIG, KEB COLONY
     BENGALURU - 560 090

4.   R.P.INDUSHEKAR
     S/O LATE INDIRAMMA
     AGED ABOUT 50 YEARS
     R/O NO.37/2, 2ND FLOOR
     4TH MAIN
     SAMPANGIRAMA NAGAR
     BENGALURU - 560 027
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5.   P.R.PASHUPATHI
     S/O LATE INDIRAMMA
     AGED ABOUT 43 YEARS
     R/O NO.37/2
     2ND FLOOR, 4TH MAIN
     SAMPANGIRAMA NAGAR
     BENGALURU - 560 027

6.   SMT.SARALA
     D/O LATE PADMA
     AGED ABOUT 42 YEARS
     R/O NO.630, E 2ND MAIN ROAD
     RPC LAYOUT
     VIJAYANAGARA
     BENGALURU - 560 040

7.   RANGANATH
     S/O LATE PADMA
     AGED ABOUT 40 YEARS
     R/O NO.254, 7TH C MAIN ROAD
     3RD STAGE, IV BADAVANE
     BASAVESHWARANAGAR
     BENGALURU - 560 079

8.   RAMAKRISHNA
     S/O LATE CHIKKA BYATAPPA
     AGED ABOUT 67 YEARS
     R/O NO.18 TO 22, 2ND FLOOR
     BYATAPPA BUILDING
     CUBBONPET MAIN ROAD
     BENGALURU - 560 002

9.   SMT.SHANTHA
     D/O LATE CHIKKA BYATAPPA
     W/O RAJANNA
     AGED ABOUT 66 YEARS
     R/O NO.55, MUDDANNA PALYA
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     1ST MAIN ROAD
     ANJANA NAGAR
     BENGALURU - 560 091

                                      .....RESPONDENTS

(BY SRI.M.C.RAVIKUMAR, ADVOCATE FOR
H.T.JAGANNATHA, ADVOCATE FOR R.1(A-C);
SRI.H.KANTHARAJA, SENIOR COUNSEL FOR
SRI.K.CHANNAPPA, ADVOCATE FOR R.2;
SRI.VISHWANATHA SHETTY, ADVOCATE FOR R.3;
SRI.N.KUMAR, ADVOCATE FOR R.4 AND R.5;
SRI.SHARATH S GOWDA, ADVOCATE FOR R.8;
R.6, R.7 AND R.9 ARE SERVED)


     THIS REGULAR FIRST APPEAL IS FILED UNDER

SECTION 96 OF CPC AGAINST THE ORDERS DATED

15.03.2012 PASSED ON I.A.NO.3 IN O.S.NO.8311/2010

ON THE FILE OF THE XV ADDITIONAL CITY CIVIL JUDGE,

BENGALURU CITY ALLOWING THE I.A.NO.3 FILED U/O.7

RULE 11(A) R/W SECTION 151 OF CPC.



     THIS REGULAR FIRST APPEAL COMING ON FOR

HEARING   THIS   DAY,   THE   COURT   DELIVERED   THE

FOLLOWING:
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                                   JUDGMENT

This captioned Regular First Appeal is filed by the

plaintiff feeling aggrieved by the order dated

15.03.2012 passed by the Trial Court in

O.S.No.8311/2010 on I.A.No.3, wherein the suit filed

by the appellant - plaintiff is rejected under Order VII

Rule 11(a) of CPC., It is this order, which is under

challenge.

2. For the sake of convenience, the parties are

referred to as per their ranks before the Trial Court.

3. The relevant family tree is as follows;

Chikkabyatappa (Late) | Gowramma (wife) | __1_____________2________________3________4_______5_________6__________7____ | | | | | | |

N.C.Byatappa N.C.Lakshminarayana N.C.Lakshmi Indiramma Padmavathy Ramakrishna Shantha (79 Yrs) (77 Yrs) Narasimhaiah (late) | late (64 Yrs) (60 Yrs) (75 Yrs) | Subbaiah | (70 Yrs) ____________________________________________ | |__________________ Geetha Indushekar Balarama Pashupathi Sarala Ragnatha (50 Yrs) (48 Yrs) (45 Yrs) (41 Yrs) (40 Yrs) (38 Yrs)

4. Brief facts leading to the present case are as

follows;

The present suit is filed by the son of the

pre-deceased daughter namely Smt.Indiramma, who

was one of the daughter of Chikkabytappa, who had

three sons and four daughters. The present plaintiff

asserting and claiming right through his mother

Smt.Indiramma has filed suit for partition and

separate possession in O.S.No.8311/2010. At para

No.8 of the plaint, the plaintiff has squarely narrated

that the male co-parceners have partitioned the suit

schedule properties in O.S.No.3842/1999 without

impleading the mother of the plaintiff, who was very

much alive as on the date of filing of the suit. The

plaintiff has also furnished the death certificate of his

mother indicating that she died on 27.07.2000 and

the plaintiff claimed that the suit schedule properties

are the joint family properties and therefore, he being

one of the son of Smt.Indiramma is entitled to seek

partition and separate possession over the suit

schedule properties. On these set of pleadings, he has

filed a suit in O.S.No.8311/2010 seeking 1/24th share

by way of notional partition.

5. On receipt of summons, defendant No.2

contested the proceedings by filing written statement.

Having filed written statement, defendant No.2 filed

application in I.A.No.3 under Order VII Rule 11(a)

read with Section 151 of CPC., seeking rejection of

plaint on the ground that there is already a partition in

terms of the judgment and decree passed in

O.S.No.3842/1999. The learned Judge without

examining the rights of the parties under Section 8 of

the Hindu Succession Act and by virtually misreading

the right of the son of pre-deceased daughters and by

accepting the averments made at para No.8 of the

plaint has come to the conclusion that the present suit

is not at all maintainable. The learned Judge by

applying amended provision under Section 6A of the

Hindu Succession Act has come to the conclusion that

the plaintiff's mother Smt.Indiramma was married

prior to 1994 and original propositor Chikkabytappa

died in the year 1950 and his wife Smt.Gowramma

also died in the year 1996 and therefore, the learned

Judge was of the view that the succession was already

open on account of death of propositor

Chikkabytappa, who died in the year 1950 and he is

not entitled for share in the suit schedule properties.

Simultaneously, the learned Judge has also applied

the state amended provision to Section 6 of the Hindu

Succession Act has come to the conclusion that since

the plaintiff's mother Smt.Indiramma was married

before 1994, he would not be entitle for any share in

the suit schedule properties. It is in this context the

learned Judge has come to the conclusion that when

the mother of the plaintiff and defendant No.3 was not

having any right, question of seeking partition by her

children would not arise. It is this order which is

under challenge by the present plaintiff.

6. Heard learned counsel appearing for the

appellant, learned Senior Counsel Sri.H.Kantharaj

appearing for respondent No.2, learned counsel

appearing for legal heirs of respondent No.1 and

learned counsel appearing for respondent Nos.4 and 5

and Sri.Sharath S Gowda, learned counsel appearing

for respondent No.8.

7. 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(a) of CPC by referring to the

averments made in the affidavit filed in support

of application, which is filed under Order VII

Rule 11(a) of CPC.

8. 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. Perused the judgment under challenge. On

bare reading of the findings recorded by the learned

Judge while exercising the power under Order VII Rule

11 of CPC., this Court would, prima-facie, find that the

learned Judge has travelled beyond the pleadings set

AIR 2003 SC 759

out in the plaint. It is a trite law that while considering

the case of the defendants seeking rejection of plaint

under Order VII Rule 11 of CPC., it would be

necessary to examine the pleadings averred in the

plaint, which are germane and this Court cannot look

into any materials beyond the pleadings set out in the

plaint.

11. The learned Judge at para No.9 of the order

under challenge has referred to the date of death of

Chikka Byatappa as 1950 and the same is not

reflected in the averments made in the plaint. So

probably, the cognizance of the date of death is taken

into consideration by the learned Judge by referring to

other materials, which are probably the pleadings

averred by the defendants. This Court would also find

that the learned Judge has totally misread the

amended provision to Section 6 of Hindu Succession

Act. By taking note of the averments made at para

No.8 of the plaint as an admission to the earlier

partition, the learned Judge has proceeded to hold

that the present suit is not maintainable.

12. The second reason on which the learned

Judge has proceeded to dismiss the suit is as

Chikkabytappa died in the year 1950, the succession

would open immediately and since father of

Smt.Indiramma died much prior to the

commencement of 1956 Act, daughter is not entitled

for share. But, in the course of the order, the learned

Judge has also referred to the date of death of widow

of Chikkabytappa, wherein the learned Judge has

observed that his wife Smt.Gowramma died in the

year 1986. The said observation is also found in para

No.9 of the said judgment. If this significant details

are taken into consideration, the impugned order

under challenge is liable to be dismissed on two

counts.

12(a). If the admitted set of pleadings are taken

into consideration, even if Chikkabytappa died in the

year 1950, in the light of the principles laid down by

the Hon'ble Apex Court in the case of DAYA SINGH

VS. DHAN KAUR reported in 1974 SCC 665, the

daughter would still take a share out of her mother

share. The next question that needs to be examined

is, if the plaintiff who is claiming right under

Smt.Indiramma can maintain a suit, then the Court is

also required to examine the latest Judgment of the

Hon'ble Apex Court in the case of VINEETH SHARMA

VS. RAKESH SHARMA AND OTHERS reported in

AIR 2020 SC 3717,. Without examining the

principles and object of Section 6 of the Hindu

Succession Act and without taking note of Section 8 of

the Hindu Succession Act, the learned Judge by taking

cognizance of the documents and facts which are not

found in the plaint has proceeded to reject the plaint

and therefore, I am of the view that the order

rejecting the plaint by invoking provision under Order

VII Rule 11(a) of CPC., suffers from serious infirmities

and therefore, is not at all sustainable.

13. In that view of the matter, the point

formulated above is answered in affirmative and the

order under challenge is liable to be set-aside.

14. For the foregoing reasons, I pass the

following;

ORDER

The appeal is allowed.

The impugned order dated 15.03.2012 passed in O.S.No.8311/2010 on I.A.No.3 by the XV Additional City Civil Judge and Sessions Judge, Bengaluru City (CCH-3) is set-aside and 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. The suit is restored to file.

              Since   both      the     parties      are
      represented     by   their    counsel,    without

expecting any further summons by the Court, are directed to appear before the Trial Court on 06.06.2022.

Sd/-

JUDGE

NBM