Smt Pravbhamani Bai vs Smt Shobhavathi @ Shobavathibai
2024 Latest Caselaw 22218 Kant

Karnataka High Court

Smt Pravbhamani Bai vs Smt Shobhavathi @ Shobavathibai on 3 September, 2024

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                           NC: 2024:KHC:36370
                                                          CRP No. 269 of 2022




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 3RD DAY OF SEPTEMBER, 2024

                                             BEFORE
                        THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                    CIVIL REVISION PETITION NO. 269 OF 2022 (IO)
                   BETWEEN

                   1.    SMT PRAVBHAMANI BAI
                         W/O SRI NAGARAJ RAO
                         AGED 64 YEARS,
                         R/AT NO.443,
                         12TH CROSS, 4TH MAIN ROAD,
                         2ND STAGE, WEST OF CHORD ROAD,
                         BENGLAURU-560086.

                   2.    SMT.N INDUMATHI
                         D/O SRI NAGARAJ RAO
                         W/O SRI RAVINDRANATH SINDHIA
                         AGED 45 YEARS,
                         C/O NO.443, 12TH CROSS,
                         4TH MAIN ROAD, 2ND STAGE,
                         WEST OF CHORD ROAD,
                         BENGALURU-560 086

Digitally signed         PERMANENT R/AT NO.1, CASSANDRA COURT,
by PRAKASH N             MONROE TOWHSHIP, NEW JERSEY 08831
                         UNITED STATES OF AMERICA.
Location: HIGH
COURT OF                 PETITIONER 1 AND 2 ARE
KARNATAKA                REPRESENTED BY THEIR POA,
                         PETITIONER NO.3

                   3.    SMT.N.YAMUNABAI
                         D/O SRI NAGARJ RAO
                         AGED 42 YEARS,
                         R/AT NO.443,
                         12TH CROSS, 4TH MAIN ROAD,
                         2ND STAGE, WEST OF CHORD ROAD,
                         BENGLAURU-560086.
                                 -2-
                                         NC: 2024:KHC:36370
                                        CRP No. 269 of 2022




4.    RAMACHANDER SYLESH JADAV,
      H/O LATE N.BINDUMATHI,
      AGED ABOUT 50 YEARS,

5.    SIDHANTH SYLESH JADAV.,
      S/O LATE N.BINDUMATHI,
      AGED ABOUT 17 YEARS,

6.    NISHANTH SYLESH JADAV,
      S/O LATE N.BINDUMATHI,
      AGED ABOUT 15 YEARS,

      PETITIONER 4 TO 6 ARE R/AT
      1274, SKYVIEW CT.,
      MECHNICSBUR, PA-17050
      UNITED STATES OF AMERICA.

      PETITIONERS 4 TO 6 ARE IMPLEADED AS
      PER THE ORDER DATED 06.12.2022 OF
      THIS HON'BLE COURT AND ARE REPRESENTED
      BY THEIR POA, PETITIONER No.3,
      SMT.N.YAMUNABAI.
                                               ...PETITIONERS
(By SRI. B.S. KRISHNA., ADVOCATE)

AND

1.    SMT SHOBHAVATHI @ SHOBAVATHIBAI
      W/O SRI NAGABHUSHANA RAO
      D/O SRI NAGARAJ RAO
      AGED 49 YEARS,
      R/AT C/O RAMSHEKHAR BUILDING
      K.H.B. COLONY, NEAR WATER TANK
      GANAPATHI TEMPLE, WARD NO.30
      IJOOR RAMANAGARA-571 511.

      SRI.R.NAGARAJ RAO
      S/O LATE . RANOJI RAO
      AGED 80 YEARS, R/AT NO.443,
      12TH CROSS, 4TH MAIN ROAD,
      2ND STAGE, WEST OF CHORD ROAD,
      BENGALURU-560086
      (SINCE DEAD REPRESENTED BY LRS)
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                                          NC: 2024:KHC:36370
                                         CRP No. 269 of 2022




     R.CHINNUBAI @ R.SHANTHABAI
     D/O LATE L.RANOJI RAO

2.   AGED 76 YEARS,
     R/AT NO.375,
     60 FEET ROAD, MEI LAYOUT
     OPP MEI PLAYGROUND
     BAGALUGUNTTE, NAGASHANDRA POST,
     BENGALURU-560073.

3.   SRI.VIJAYAKUMAR
     S/O SRI NAGARAJ RAO
     AGED 55 YEARS,
     R/AT NO.443,
     12TH CROSS, 4TH MAIN ROAD,
     2ND STAGE, WEST OF CHORD ROAD,
     BENGALURU-560086.

4.   SMT.ANNAPURNA
     D/O SRI NAGARJ RAO
     AGED 52 YEARS,
     R/AT NO.443, 12TH CROSS, 4TH MAIN ROAD,
     2ND STAGE, WEST OF CHORD ROAD,
     BENGALURU-560 086.

5.   SMT.N.BINDUMATHI
     D/O SRI NAGARAJ RAO
     AGED 39 YEARS,
     R/AT NO.443,
     12TH CROSS, 4TH MAIN ROAD,
     2ND STAGE, WEST OF CHORD ROAD,
     BENGALURU-560086.
     (SINCE DEAD, REPRESENTED BY LRS.,
     PETITIONERS 4 TO 6)

6.   M/S. PRIDE AND EXPERTS PROPERTIES PVT LTD
     REPREENTED BY ITS DIRECTOR
     MURALILAL SARAGI
     HAVING OFFICE NO.16/1, CRESCENT ROAD,
     AMERICAN COLONY
     BHAVANI MANSION
     KUMARA PARK EAST
     BANGALORE-560 001.
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                                          NC: 2024:KHC:36370
                                        CRP No. 269 of 2022




7.   SMT.LAKSHMAMMA
     W/O SRI CHIKKANNA C
     AGED 70 YEARS,
     NO.39/2, K.R.MAIN ROAD,
     KARISANDRA, BANASHANKARI, 2ND PHASE,
     BANGALORE-560070.

8.   SRI.CHIKKANNA C
     S/O LATE CHIKKAPUTTEGOWDA
     AGED 78 YEARS,
     NO.39/2, K.R.MAIN ROAD,
     KARISANDRA, BANASHANKARI 2ND PHASE,
     BANGALORE-560 070.
                                                 ...RESPONDENTS
(BY SRI. SURESHA.C., ADVOCATE FOR R-1;
    SRI. M.S.RAGHAVENDRA PRASAD., ADVOCATE FOR R-2;
    SRI. E.R.GAJENDRA NAIDU, ADVOCATE FOR R-3 & R-4;
    SRI.G.SRIDHAR., ADVOCATE FOR R-6;
    R-7 & R-8 ARE SERVED AND UNREPRESENTED;
    R-5 DIED BY LRs., AS P-4, P-5 & P-6 VIDE ORDER DATED:
    06.12.2022)


     THIS CIVIL REVISION PETITION IS FILED SECTION 115 OF
THE CPC, 1908 PRAYING TO    CALL FOR THE RECORDS AND SET
ASIDE THE ORDER DATED 21.06.2022 PASSED BY THE HON'BLE
XXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (C.C.H 14),
BANGALORE WHEREB THE INTERLOCUTORY APPLICATION No.9
FILED BY THE PETITIONERS UNDER ORDER VII, RULE XI (a) AND (d)
OF THE CODE OF CIVIL PROCEDURE INO.S.No.3978 OF 2019 WAS
REJECTED, ETC.

                              *****

THIS CIVIL REVISION PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 22.07.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

NC: 2024:KHC:36370

CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ

CAV ORDER

1. The petitioners No.1 to 3, who are defendants No.5

to 7, and petitioners No.4 to 6, who are not parties

before the trial Court are before this Court seeking

for the following reliefs;

     i.     Call for records;

     ii.    Set aside the order dated 21.6.2022 passed by the

Hon'ble XXXI Additional City Civil & Sessions Judge (CCH 14), Bangalore whereby the Interlocutory Application No.9 filed by the Petitioners under Order VII, Rule XI (a) and (b) of the Code of Civil Procedure in O.S.No.3978/2019 was rejected;

iii. Pass an order allowing the application made by the petitioners under Order VII Rule 11 (a) and (b) read with Section 151 of the Code of Civil Procedure and reject the plaint in O.S.No.3978 of 2019 on the file of the Hon'ble XXXI Additional City Civil & Sessions Judge (CCH 14);

iv. Pass any such other suitable order/s as this Hon'ble court deems it appropriate in the admitted facts and circumstances of the case;

v. Award the costs of this proceedings, in the interests of justice and equity.

2. A suit in OS No.3978/2019 had been filed by

respondent No.1 seeking for the following reliefs;

WHEREFORE, it is prayed that this Hon'ble Court may be pleased to pass a judgment and decree in

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favour of the plaintiff and against the defendants for the following reliefs;

a. PARTITION AND SEPARATE POSSESSION OF plaintiff 1/8th share in the schedule property.

b. To award the appropriate mesne profits from the date of suit till the date of giving the possession by appointing the Court commissioner for partitioning of the suit schedule properties.

c. Declare that gift deeds executed by the first

illegal and same is not binding on the plaintiff.

d. Grant such other relief/s as it may deem fit to grant by this Hon'ble Court in the facts and circumstances of the case, in the interest of justice.

3. In the said suit, defendants No.5 to 7 had filed an

application under Clause (a) and (b) of Rule 11 of

Order 7 of the CPC for rejection of a plaint on the

following grounds:

3.1. There is no cause of action which has arisen.

3.2. The plaintiff had suppressed material facts

made false statements and the suit is vexatious

as also frivolous.

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3.3. That there was no cause of action for filing of

the suit, since the plaintiff had not made any

whisper about who constitutes the members of

the joint family, how long the plaintiff and

defendants were residing together, when the

plaintiff and defendants enjoyed the joint family

properties, the manner in which plaintiff and

other defendants had contributed to the joint

family.

3.4. That the suit was barred by limitation, since,

the plaintiff had made no claims over the

properties for over 30 years of attaining

majority.

3.5. Lastly, it was contended that defendant No.1's

mother had no source of income; schedule 'B'

property was acquired by her from the joint

family property. Therefore, the plaintiff's claim

was based on a false and misleading statement,

and in that background, rejection of the

complaint was sought.

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4. The trial Court by way of the impugned order dated

21.6.2022 dismissed the said application by holding

that while deciding an application under Rule 11 of

Order 7 it could not be determined whether the

property is the joint family property or not which

required evidence in trial. There being a separate

paragraph indicating cause of action, the plaint

disclosed a cause of action. As regards the plaint 'A'

schedule property, the trial Court held that same was

purchased by propositus-Sri.Ranojirao under the

registered sale deed dated 31.10.1975 which was

succeeded to by his wife Smt.Vagubai and son

Sri.R.Nagaraja Rao, Defendant No.1 father of the

plaintiff, who had executed a gift deed in favour of

Defendant No.5 - 2nd wife only to the extent of his

share. Plaintiff being the daughter of 1st wife her

share from her grandfather's property was required

to be ascertained. The plaintiff has never admitted

ouster of possession hence, the question of limitation

would not arise. Whether the property was acquired

NC: 2024:KHC:36370

from and out of joint family funds or not would

require evidence to be led and in that background

that the application came to be rejected, which is

challenged in the present proceedings.

5. Sri.B.S.Krishna., learned counsel appearing for the

petitioner would submit that;

5.1. The propositus of the family being

Sri.Ranojirao, he purchased schedule 'A'

property from Sri.T.N.Siddappa under the

registered sale deed dated 31.10.1975,

defendant No.1 had purchased a property

bearing Katha No.390/B after the death of

grandfather Sri.Ranojirao, the defendant No.1

clubbed both the properties into one property

and have given same for joint development to

defendant No.9. That the father having

executed the joint development agreement

during his lifetime, the daughter-plaintiff cannot

claim any right in the property.

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NC: 2024:KHC:36370

5.2. Insofar as scheduled 'B' property is concerned

Sri.Ranojirao's wife Vagubai had purchased the

same under a registered sale deed dated

20.12.1967. After her death, defendant No.1

succeeded to the said property being her son

and thereafter gifted the said property to the

2nd wife i.e., defendant No.5. Hence, the

plaintiff who is the daughter of 1st wife cannot

have any claim over the suit schedule 'B'

property.

5.3. His submission is that the schedule 'C' property

has been purchased out of the self-earning of

defendant No.1, therefore it is not a joint family

property. Similar is the submission made as

regards schedule 'B' property.

5.4. His submission is that during the lifetime of the

father i.e., defendant No.1, the plaintiff who is

the daughter of defendant No.1 from the 1st

wife cannot maintain a suit for partition as on

the date of filing of the suit, the suit itself being

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barred. The plaintiff claiming under defendant

No.1, no decree of partition could be passed

during the lifetime of defendant No.1, as such

the plaint would have to be rejected.

5.5. He relies upon the decision of the Madhya

Pradesh High Court in the case of M/s

Reliance Cement Company Pvt. Ltd. vs.

Manminder Singh1 more particularly para 7,

8 and 10 thereof, which are reproduced

hereunder for easy reference:

7. On hearing learned counsel and perusing the record, this Court is of the considered view that on the date of filing of suit there was no cause of action in favour of plaintiff and the same would arise only when the lease deed is renewed or application was decided one way or the other.

Therefore, in the considered opinion of this Court learned trial Court erred in recording finding in respect of application under Order 7 Rule 11 CPC. The Court under Order 7 Rule 11(a) of CPC has to see whether only cause of action has arisen in favour of plaintiff.

8. In this regard it is worth referring to the decision in the case of Dahiben Vs. Arvind Bhai Kalyanji Bhansali, 2020 SCC Online (SC) 562 [Civil Appeal No.9519/2010 decided on 09.7.2020] wherein the Hon'ble Supreme Court has held as under:-

Civil revision No.361/2022 dated 3.1.2024

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NC: 2024:KHC:36370

"12. We have heard the learned Counsel for the parties, perused the plaint and documents filed therewith, as also the written submissions filed on behalf of the parties.

12.1 We will first briefly touch upon the law applicable for deciding an application under Order VII Rule 11 CPC, which reads as under-:

"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed in undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintif fails to comply with the provisions of rule 9 Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintif was prevent by any cause of exceptional nature for correction the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintif ." (emphasis supplied) The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the

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action should be terminated on any of the grounds contained in this provision. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11

(d), the Court would not permit the plaintif to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

In Azhar Hussain v. Rajiv Gandhi1 this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words:

"12. ...The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action."

12.2 The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to. 12.3 Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

12.4 xxxxxxx 12.5 In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.

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12.6 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. 12.7 The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr.,4 which reads as:

"139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."

In Hardesh Ores (P.) Ltd. v. Hede & Co.5 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. 12.8 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC. 12.9 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of

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Maharashtra. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).

12.10 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.

13. "Cause of action" means every fact which would be necessary for the plaintif to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintif to prove in order to entitle him to the reliefs claimed in the suit. In Swamy Atmanand v. Sri Ramakrishna Tapovanam this Court held:-

"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintif to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintif a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded"

(emphasis supplied) In T. Arivandandam v. T.V. Satyapal & Anr.9 this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: -

"5. ...The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11,

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C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing..."

(emphasis supplied) Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal11 held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage.

The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.

14. .........A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh,13 held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintif , and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected."

10. It was the duty of the learned trial Court to see before registration of the plaint whether any cause of action has arisen or not. Learned trial Court did not consider the provisions of Order 7 Rule 11(a) of CPC. Resultantly, this revision is

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allowed and the suit of the respondent/plaintiff being without any cause of action is dismissed.

5.6. By relying on M/s Reliance Cement

Company Pvt. Ltd., case he submits that

there is a duty cast on a trial Court to ascertain

at the time of registration of the plaint whether

any cause of action has arisen or not. If there

is no cause of action, the plaint would have to

be rejected.

5.7. By relying on the decision of the Hon'ble Apex

Court in Dahiben case which refers to the

decision in M/s Reliance Cement Company

Pvt. Ltd., case he submits that the provisions

of Rule 11 of Order 7 are of mandatory nature

and the plaint shall be rejected if any of the

grounds specified in Clause (a to d) are made

out. When there is no cause of action made out

or suit is barred by any law the Court has no

option but to reject the plaint.

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5.8. He relies upon the decision of in case of

Rajendra Bajoria and others vs. Hemant

Kuamr Jalan2, more particularly para 17, 19

and 20 thereof, which are reproduced

hereunder for easy reference;

17. It could thus be seen that the court has to find out as to whether in the background of the facts, the relief, as claimed in the plaint, can be granted to the plaintiff. It has been held that if the court finds that none of the reliefs sought in the plaint can be granted to the plaintiff under the law, the question then arises is as to whether such a suit is to be allowed to continue and go for trial. This Court answered the said question by holding that such a suit should be thrown out at the threshold. This Court, therefore, upheld the order passed by the trial court of rejecting the suit and that of the appellate court, thereby affirming the decision of the trial court. This Court set aside the order passed by the High Court, wherein the High Court had set aside the concurrent orders of the trial court and the appellate court and had restored and remanded the suit for trial to the trial court.

19. We are in complete agreement with the findings of the High Court. Insofar as the reliance placed by Shri Jain on the judgment of this Court in the case of Dahiben (supra), to which one of us (L. Nageswara Rao, J.) was a member, is concerned, in our view, the said judgment rather than supporting the case of the plaintiffs, would support the case of the defendants. Paragraphs 23.3, 23.4, 23.5 and 23.6 in the case of Dahiben (supra) read thus:

Civil Appeal Nos.5819-5822/2021

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"23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar Hussani v. Rajiv Gandhi, 1986 Supp SCC 315, Followed in Manvendrasinhji Ranjitsinghji Jadeja v. Vijaykunverba, 1998 SCC OnLineGuj281 :

(1998) 2 GLH 823] this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words : (SCC p. 324, para 12) "12. ... The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action."

23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to. 23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law."

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20. It could thus be seen that this Court has held that the power conferred on the court to terminate a civil action is a drastic one, and the conditions enumerated under Order VII Rule 11 of CPC are required to be strictly adhered to. However, under Order VII Rule 11 of CPC, the duty is cast upon the court to determine whether the plaint discloses a cause of action, by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. This Court has held that the underlying object of Order VII Rule 11 of CPC is that when a plaint does not disclose a cause of action, the court would not permit the plaintiff to unnecessarily protract the proceedings. It has been held that in such a case, it will be necessary to put an end to the sham litigation so that further judicial time is not wasted.

5.9. By relying on Rajendra Bajoria's case, he

submits that the Court has to find out whether,

in the background of facts, the reliefs sought in

the plaint can be granted or not. If the plaint

does not disclose a cause of action, the Court

will not permit the plaintiff to unnecessarily

protract the proceedings.

5.10. In the present case, when the father is alive,

the question of the decree for partition being

granted would not arise; as such, the plaint

ought to have been rejected.

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5.11. Though there are several other decisions which

are found on the file, filed from time to time

they are not referred to or relied upon by

counsel for the petitioner.

5.12. On the basis of the above submissions, he

submits that the plaint ought to have been

rejected.

6. Learned counsel for the respondent No.1 - Plaintiff

would support the order passed by the trial Court

and submit that;

6.1. The trial Court has rightly come to a conclusion

that the contentions taken up and averments

made in the plaint would require evidence to be

led. The relationship between the plaintiff and

defendant No.1 being admitted, the property

having been purchased by the grandfather and

grandmother insofar as those properties are

concerned the plaintiff would have a claim

which would require to be adjudicated by the

trial Court.

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6.2. As regards the submission of the counsel for

the petitioner that at the time of filing of the

suit the father was alive and the relief of

partition could not be granted, he submits that

subsequently the father has expired and

therefore the succession is now open. Even if

the submission of the plaintiff were to be

accepted now that the father had expired, the

succession having opened, the relief sought for

in the plaint can be continued.

6.3. He relies upon the decision of the full bench of

the Hon'ble Apex Court of India in

Revanasiddappa v. Mallikarjun3 more

particularly para 81 thereof which is reproduced

hereunder for easy reference;'

K. Conclusion

81. We now formulate our conclusions in the following terms:

81.1. In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under

(2023) 10 SCC 1,

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Section 11 is statutorily conferred with legitimacy irrespective of whether : (i) such a child is born before or after the commencement of the amending Act, 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment;

81.2. In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child "begotten or conceived" before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity;

81.3. While conferring legitimacy in terms of sub- section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in sub-section (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person;

81.4. While construing the provisions of Section 3(j) of the HSA, 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA, 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA, 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes of Section 3(j) of the HSA, 1956, fall within the ambit of the explanation "related by legitimate kinship" and cannot be regarded as an "illegitimate child" for the purposes of the proviso;

81.5. Section 6 of the HSA, 1956 continues to recognise the institution of a joint Hindu family

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governed by the Mitakshara law and the concepts of a coparcener, the acquisition of an interest as a coparcener by birth and rights in coparcenary property. By the substitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6;

81.6. Section 6 of the HSA, 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of Section 6 with effect from 9- 9-2005 by the amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary. The exception to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased in a Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship. In terms of sub-section (3) of Section 6 as amended, on a Hindu dying after the commencement of the amending Act of 2005 his interest in the property of a joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of Section 6, the rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu in the property of a joint Hindu family governed by Mitakshara law has been made the norm;

81.7. Section 8 of the HSA, 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate. Section 10 provides for the distribution of the property among heirs of Class I of the Schedule. Section 15 stipulates the general rules of succession in the case of female Hindus dying intestate. Section 16

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provides for the order of succession and the distribution among heirs of a female Hindu;

81.8. While providing for the devolution of the interest of a Hindu in the property of a joint Hindu family governed by Mitakshara law, dying after the commencement of the amending Act of 2005 by testamentary or intestate succession, Section 6(3) lays down a legal fiction, namely, that "the coparcenary property shall be deemed to have been divided as if a partition had taken place". According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition;

81.9. For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener, namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA, 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; and

81.10. The provisions of the HSA, 1956 have to be harmonised with the mandate in Section 16(3) of the HMA, 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a joint Hindu family governed under the Mitakshara law has to be

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ascertained in terms of the Explanation to sub- section (3), as interpreted above.

6.4. By relying on Revanasiddappa's case he

submits that defendant No.5 is the 2nd wife of

defendant No.1, having married defendant No.1

during lifetime of the 1st wife. Defendants

No.6, 7 and 8 are born out of the 2nd marriage

during the lifetime of the 1st wife and as such

defendant No.6, 7 and 8 would not have any

right, title or interest over the joint family

property but would only have a right over the

individual property of the father.

6.5. Thus, he submits that defendants No.6, 7 and 8

cannot rubbish the rights of the plaintiff. The

aspect of the entitlement of each of the parties

has to be determined after the trial and an

application under Rule 11 of Order 7 of the CPC

cannot be made use to reject the claim of the

plaintiff which is completely tenable and lawful

at the threshold.

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7. The other Respondents adopt the submission of the

counsel for Petitioners.

8. Heard Sri.B.S.Krishna., learned counsel appearing for

the petitioner, Sri.Suresha.C., learned counsel

appearing for respondent No.1, Sri.M.S.Raghavendra

Prasad., learned counsel appearing for respondent

No.2, Sri.E.R.Gajendra Naidu., learned counsel

appearing for respondents No.3 and 4 and

Sri.G.Sridhar., learned counsel appearing for

respondent No.6. Perused papers.

9. In the present case admittedly a large extent of

schedule 'A' property was purchased by the

grandfather- Ramojirao. Defendant No.1 purchased a

portion of the schedule 'A' property clubbed both

properties and defendant No.1 has executed a joint

development agreement with defendant No.9.

10. Schedule 'B' property was purchased by the

grandmother which was succeeded to by defendant

No.1-father.

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11. Defendant No.1 though was alive at the time of filing

of the suit has subsequently expired. Defendant No.1

has not dealt with the properties during his lifetime

so as to alienate the properties and/or transfer the

interest of defendant No.1 in the properties to 3rd

parties, at the time of death of defendant No.1 the

properties continued to stand in the name of

defendant No.1.

12. Though the contention of counsel for the petitioner is

that when the suit was filed it was not maintainable

since the father was alive is correct. Subsequent

thereto, the father has expired, thus opening the

succession, plaintiff admittedly being the daughter of

defendant No.1 from his 1st wife would be entitled to

both joint family property as also self-acquired

property. In my considered opinion there would be

no purpose served by rejecting the plaint at this

stage and time, since the Plaintiff would be entitled

to file a similar suit for the very same claims now

that the father has expired.

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13. Defendant No.5 being the 2nd wife, defendants No.6,

7 and 8 being the Children from the 2nd wife, the 2nd

marriage having been solemnized during the

substance in the 1st marriage in terms of the decision

of Hon'ble Apex Court in Revannasiddappa's case

defendant No.5 would not be entitled to any right,

defendants No.6, 7 and 8 would be entitled to the

properties falling to the share of father and not

having the right over the joint family property.

14. The aspect of whether the property is a joint family

property or not would be subject matter of trial and

would have to be adjudicated during trial so as to

ascertain the rights of the Plaintiff and Defendants 6

to 8. It cannot therefore be said at this juncture that

the plaintiff has no interest in the property to seek

for partition requiring the exercise of the drastic

power under Rule 11 of Order 7 of the CPC.

15. This submission would also amount to the suit being

premature on account of father being alive. Whereas

in the affidavit field in support of the application of

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Rule 11 of Order 7, it is also sought to be contended

by the petitioner that the suit is belated by

contending that the plaintiff has not exercised any

right over the property for last 30 years.

16. Such a submission apart from being contradictory is

mutually destructive, either the suit can be said to be

premature, or suit can be said to be barred by

limitation. Be that as it may, the same also is to be

subject matter of trial and cannot be adjudicated at

the time of consideration of application under Rule

11 of Order 7 of the CPC.

17. Insofar as the contention that the plaint does not

disclose cause of action as can be seen from para 18

of the plaint, there is specific cause of action para

which has been pleaded. Whether the cause of action

pleaded is correct or not is a matter of trial, a

reading of a plaint does not indicate that there is no

cause of action which is disclosed in the plaint. The

plaint does indeed disclose the cause of the action,

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therefore, it would not require the exercise of power

under Rule 11 of Order 7 of CPC on that ground.

18. Insofar as doctrine of blending or otherwise these are

matters of trial and cannot again be adjudicated at

the time of consideration of the application under

Rule 11 of Order 7 of the CPC. Thus, for all the

abovementioned reasons, I do not find any infirmity

in the order passed by the trial Court.

19. Reserving liberty to the petitioner to agitate these

issues during the course of trial the above petition

stands dismissed.

Sd/-

(SURAJ GOVINDARAJ) JUDGE

SR