Karnataka High Court
Smt. Vrunda Kumble vs Shri. Shivaramu on 3 April, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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CRP No. 604 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
CIVIL REVISION PETITION NO. 604 OF 2023 (IO)
BETWEEN:
1. SMT. VRUNDA KUMBLE
W/O LATE RAGHUVEER G.KUMBLE
AGED 85 YEARS,
R/AT K.HEMMANAHALLI VILLAGE,
ILAVALA HOBLI, NAGAWALA POST,
MYSURU.
PRESENTLY AT:
No.A508, IRENE,
OZONE URBAN TOWNSHIP,
KANNAMANGALA,
DEVANAHALLI TALUK,
BANGALORE RURAL-562 110.
...PETITIONER
(BY SRI. ASHOK.B.PATIL., ADVOCATE)
Digitally AND:
signed by
KIRAN
KUMAR R 1. SHRI. SHIVARAMU,
Location:
HIGH S/O LATE NINGEGOWDA,
COURT OF AGED ABOUT 45 YEARS,
KARNATAKA
R/AT HULIYALU VILLAGE,
ILAVALA HOBLI, MYSURU.
2. SMT. SIDDAMMA,
W/O LATE MALLUGOWDA,
AGED ABOUT 54 YEARS,
R/AT HULIYALU VILLAGE,
ILAVALA HOBLI, MYSURU.
...RESPONDENTS
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CRP No. 604 of 2023
THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST ORDER DATED 26.06.2023 PASSED ON IA No.5 IN OS
No.951/2019 ON THE FILE OF VII ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, MYSURU, REJECTING THE IA No.5 FILED
UNDER ORDER 7 RULE 11(d) OF CPC., OR REJECTION OF
PALINT.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 12.03.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. Respondent No.1 herein instituted a suit seeking
partition of the land bearing Sy.No.216/3 measuring 02
acres 20 guntas, and Sy.No.217/1 measuring 01 acre 24
guntas (the total extent of land being 04 acres 04 guntas).
2. It was the case of the plaintiff that his grandfather--
Rame Gowda had two sons viz., Ninge Gowda and Mallu
Gowda. The first son--Ninge Gowda was the plaintiff's
father. Defendant No.1--Siddamma was the wife of the
second son of his grand-father i.e., Mallu Gowda. It was
his case that the suit properties were coparcenary
properties and that his father along with defendant No.1's
husband were enjoying the same as a joint family.
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3. The said properties had not been subjected to any
partition and continued to be joint. The plaintiff contended
that he was entitled to a half share in the suit schedule
property and defendant No.1--his paternal aunt was
entitled to the other half share.
4. It is stated that his uncle--Mallu Gowda got his name
entered and so0ld the property to defendant No.2 i.e., the
petitioner herein, and the plaintiff recently gained
knowledge of said transaction. Consequently, he issued a
legal notice dated 25.06.2018 and defendant No.2 had
given an untenable reply. He stated that since he was
entitled to half share, he was seeking a partition.
5. In the suit O.S. No.951 of 2019, an application was
filed under Order VII Rule 11(d) of the Code of Civil
Procedure, 1908 ("the CPC") by the petitioner--defendant
No.2 requesting the Court to reject the plaint. It was
contended that the suit should have been filed within three
years from the date on which the plaintiff attained the age
of majority. It was stated that the suit property had been
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sold on 06.12.1978 and it was not known as to whether
plaintiff--respondent No.1 herein had been born as on
06.12.1978, and even if he was born on said date, the law
of limitation mandated that he was to file a suit to annul
the sale within three years from the date of him attaining
the age of majority. The crux of the petitioner counsel's
argument was that as a consequence of not filing a suit
within three years, the suit was barred by the law of
limitation and the plaint was liable to be rejected.
6. It was also averred that since the petitioner had
stated in his plaint that he was 41 years of age, it was
obvious that as on the date of the sale, he was a minor
and he ought to have filed a suit within three years. As a
result of that not having been done, he contended that the
plaint was liable to be rejected.
7. The Trial Court has rejected this application by way
of the order impugned in this petition.
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8. It has been held by the Trial Court that the plaint
averments indicated that the plaintiff had stated that he
came to know about the alleged sale deed only about a
year ago and he had thereafter issued a legal notice on
25.06.2018, for which he got a reply dated 02.07.2018,
and thus, the cause of action had arisen only on
25.06.2018, which resultantly meant that the suit could
not be rejected on the ground that it was barred by time
without subjecting the matter of the suit to trial.
9. As for the argument that the suit ought to have been
filed within three years of the plaintiff attaining the age of
majority, the Trial Court has taken the view that the
question of limitation would be a mixed question of fact
and law, and in order to decide such a question, it would
be necessary to consider the entire pleadings as also the
evidence, and therefore, it was concluded that the case at
hand was not a fit case to reject the plaint.
10. Being aggrieved by the order above-mentioned, the
present revision petition has been filed.
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11. The learned counsel for the petitioner--defendant
No.2 strenuously contended that the plaint was liable to be
rejected because the plaintiff, though had admitted that
the property had been sold, had not mentioned the date of
sale deliberately in order to overcome the aspect of
limitation. He submitted that a meaningful reading of the
plaint would also necessarily mean that the averments of
the plaint, which indicate that there had been a sale,
should be taken note of and that the date of the sale will
have to be ascertained before deciding the question on
limitation.
12. He submitted that the plaintiff had neither sought
quashing of the sale deed nor had he made a prayer with
regard to the sale deed and, as such, the suit for partition
was not maintainable.
13. It was alleged that according to the plaintiff, he was
aged about 41 years and it could thus be construed that
he was born in the year 1978. Since the sale deed had
been executed on 06.12.1978, it was obvious that he was
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a minor and was hence required to file the suit within a
period of three years of attaining the age of majority i.e.,
in/before the year 1998. Since the suit had been filed in
2019, it was clear that it was hopelessly barred by time.
14. The learned counsel for the petitioner contended that
by virtue of Section 27 of the Limitation Act, the right to
title would stand extinguished if the suit had not been filed
within time, and if the plaint was read as a whole, it was
clear that it was manifestly vexatious and without any
merit, and in light of a catena of decisions rendered by the
Hon'ble Supreme Court, the plaint was liable to be
rejected.
15. Per contra, the learned counsel for the respondents
submits that there is no period of limitation prescribed for
filing a suit for partition and the plaintiff had a right by
birth in the suit property. He submits that on the death of
the plaintiff's father, he had inherited his share and he
could seek partition to obtain his share without reference
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to time, since the law presumes that the possession of
joint family properties is always joint.
16. He submitted that the sale deed executed by the
plaintiff's uncle-Mallu Gowda would be of no consequence
as far as the plaintiff was concerned, and it was also not
necessary to seek a direction for setting aside the sale
deed. He submitted that a prayer for setting
aside/cancellation of a document/instrument would arise
only if the plaintiff is a party to said instrument. If a
plaintiff is not a party to the instrument, he would
obviously be not bound by it and the need of challenging
said document would thus not arise.
17. It was also contended that the plaintiff was required
to file a suit to set aside the transfer of property as
provided under Article 60 to the Schedule of the Limitation
Act, 1963 within three years from the date on which the
minor had attained the majority and accordingly, the suit
ought to have been filed.
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18. He also submitted that since, admittedly, the sale in
favour of defendant No.2--the predecessor-in-interest was
not a sale on behalf of the plaintiff while he was a minor,
the question of applying Article 60 to the Schedule of the
Limitation Act in stating that the suit ought to have been
filed within three years from the date of attaining the
majority would not arise.
19. The learned counsel for the petitioner places reliance
on the following decisions in support of his contentions, as
summarised below:
(i) M/s. Durga Projects and Infrastructures Pvt.
Ltd. v. Sri. S. Rajagopala Reddy and Ors., ILR
2019 KAR 4739, and Dahiben v. Arvindbhai
KalyanJi Bhanusali and Ors., (2020) 7 SCC
366: deliberate and clever suppression of
material facts by the plaintiff;
(ii) Ashok B. Hottin v. E. John Peter and Ors.,
C.R.P.180/2016 disposed on 13.06.2019
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(BLR): suit to be filed within 3 years of attaining
the age of majority;
(iii) ITC Limited v. DRAT and Ors., (1998) 2 SCC
70: illusory cause of action invoked by the
plaintiff in his prayer for separate possession and
perpetual injunction to get over Order VII Rule
11;
(iv) Vishwambhar and Ors. v. Laxminarayan and
Anr., (2001) 6 SCC 163, and Murugan and
Ors., v. Kesava Gounder and Ors., (2019) 20
SCC 633: no specific prayer has been made by
the plaintiff for setting aside the sale deed;
(v) Utha Moidu Haji v. Kuningarath Kunhabdulla
and Ors., (2007) 14 SCC 792: application of the
Sections 6, 8 and 27 read with Articles 60 and 65
of the Limitation Act to file a suit for possession;
and
(vi) T. Arivandandam v. T.V. Satyapal and Anr.,
(1977) 4 SCC 467: that frivolous suits must be
dismissed at the threshold.
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20. In view of the above, the only question that would
have to be decided in this petition is :
"Whether the petitioner had
made out a case for rejection of
the plaint? "
21. It is settled law that in order to reject a plaint, it is
only the averments in the plaint which will have to be
considered.
22. Order VII Rule 11(d) of CPC reads as under:
" 11. Rejection of plaint.-- The plaint
shall be rejected in the following
cases:-- (a) x x x
(d) where the suit appears from the
statement in the plaint to be barred
by any law; "
23. It is therefore clear that in order to reject a plaint
under Order VII Rule 11(d) of the CPC, it is necessary that
a statement in the plaint itself indicates that it is barred by
law.
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24. It is also clear from said provision that the
defence/contention of the defendants is of no consequence
while considering an application for rejection of a plaint
under Order VII Rule 11(d) of the CPC.
25. The plaintiff in his plaint simply stated that the suit
property was a coparcenary property and had originally
belonged to his grand-father--Rame Gowda, who had two
sons i.e., the plaintiff's father and defendant No.1's
husband. It was his simple case that on the death of his
father, he had succeeded to half share of the suit property
while his aunt had succeeded to other half share.
26. The plaintiff contended that he recently gained
knowledge of the fact that the suit property had been sold
and he then immediately issued a legal notice claiming his
half share. This demonstrates that the plaintiff was only
concerned with securing a partition, and consequently, the
possession of his half share, and was not really concerned
with the alienation made by his uncle in respect of the
other half share.
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27. In a suit of such nature, the question of the plaintiff
having to seek a declaration that the sale deed executed
by his uncle or aunt would not arise. In fact, this Court in
Smt. Munithayamma v. Sri. Byanna1 has held that a
person who is not a party to the transfer of property is not
required to seek a declaration of cancellation, that a
particular instrument is not binding on him. In that view,
the question of plaintiff having had to seek a declaration
that the sale deed was bad in law does not arise and the
same is without merit.
28. Considering the submissions of the learned counsel
that the material fact with regard to the date of the sale
deed had been suppressed in order to get over the law of
limitation, and the reliance placed on the judgment of this
Court in M/s. Durga Projects and Infrastructures Pvt.
Ltd. (supra) and of the Apex Court in Dahiben (supra) to
contend that the sale deed is to first be expressly set aside
for the aggrieved party to claim possession, and that
Smt. Munithayamma and Anr. v. Sri. Byanna and Ors., RSA No.1653/2021 disposed
on 01.02.2022.
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successive violations do not enable a fresh cause of action
as held in Dahiben (supra) as well, it is to be stated here
that said judgments can have no application.
29. In M/s. Durga Projects, the suit was for
declaration that the plaintiffs were the absolute owners of
the property therein and were entitled to 1/3rd share,
along with a declaration that the registered sale deed was
void ab initio and would not bind the plaintiffs' share as
the suit was filed in the year 2017.
30. In the context of that case, the Court took the view
that without declaring the sale deeds as null and void, the
plaintiffs would not be entitled to 1/3rd share, and
therefore, the suit was barred by limitation. Dahiben also
dealt with the issue of having to set aside a sale deed in
order to claim a share in the subject property. In my view
the issues addressed in M/s. Durga Projects and
Dahiben are different from that in the instant case and
the judgments are, therefore, of no avail.
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31. In this regard, Vishwambhar and Murugan (both
cited supra) also cannot be considered for the reason that
these cases dealt with specific prayer(s) being needed for
setting aside the sale deed.
32. As for the argument that the suit was barred by
limitation since the same had not been filed within three
years of the plaintiff attaining the age of majority, it is to
be noticed here that Article 60 to the Schedule of the
Limitation Act relates to the period of limitation in filing of
a suit to set aside a transfer of property made by the
guardian of a ward.
33. Admittedly, in this case, the transfer of property was
not made on behalf of the plaintiff while he was a minor. It
is therefore clear that the question of the plaintiff having
had to file a suit within three years of him attaining the
age of majority would not arise. Hence, the afore-cited
judgments relied upon by the learned counsel for the
petitioner viz., in the cases of Ashok B. Hottin (on the
contention of the suit being barred by limitation); ITC
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Limited (on an illusory cause of action being invoked by
the plaintiff); Utha Moidu Haji (application of the
limitation act); and T. Arivandandam (on dismissal of
frivolous suits) would be of no assistance, since they are
specifically on the application of the Limitation Act upon
attaining the age of majority and with respect to alienation
of the suit property.
34. Delving into the application of the Limitation Act and
determining as to whether an 'illusory' cause of action has
been invoked by the plaintiff is unnecessary, for the
reason that the plaintiff is not questioning the alienation of
the subject property, but is only confining his interest to
his half share of the suit schedule property.
35. As stated above, the plaintiff was basically seeking to
secure his share of the property which he had inherited on
the death of his father and he was neither interested in
the remaining half share, nor was he challenging the
alienation made in respect of the same.
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36. The gist of the argument of the learned counsel for
the petitioner is that the plaintiff had contended that the
plaintiff's share had been sold and the suit had to be filed
within three years of him attaining the age of majority.
37. A reading of the plaint nowhere indicates that the
plaintiff had contended that his share had been unlawfully
sold. On the other hand, it is the specific case of the
plaintiff that he had acquired a share of half of the joint
family property on the death of his father and this share
should be partitioned in order to hand the possession over
to him.
38. In this view of the matter, the arguments of the
learned counsel for the petitioner--defendant No.2 do not
merit consideration.
39. It is to be reiterated that the plaintiff was not
concerned with the alienation of the other half share of the
property, but was only seeking partition and possession of
the half share that he contends to have succeeded upon
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the death of his father. Since it has also been held that
the plaintiff is not required to seek a declaration to cancel
the sale deeds for the reason of not being a party to the
alienation, the decision in Munithayamma (supra)
squarely applies.
40. I find no substantial grounds to entertain this
revision petition and it is thus dismissed as per the above
terms.
41. It is also clarified that the observations made in the
present order are de hors the ascertainment of facts and
determination of rights of the parties, and these
observations shall not, in any way, be construed to be an
opinion/finding in that regard.
Sd/-
JUDGE
RK
CT: SN
