Karnataka High Court
M/S Fern Builders & Developers vs Ms. Prathibha D on 6 June, 2025
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
CIVIL REVISION PETITION NO.398 OF 2019
BETWEEN:
M/S. FERN BUILDERS & DEVELOPERS
A PARTNERSHIP FIRM
HAVING ITS OFFICE,
AT NO.1212, HAL II STAGE,
INDIRANAGAR,
BENGLURU - 560 046.
REPRESENTED BY ITS
AUTHORISED REPRESENTATIVE,
MR.ERROL FERNANDES.
...PETITIONER
(BY SRI. AJESH KUMAR.S, ADVOCATE FOR
SRI. GNANESH H KEMPANNA, ADVOCATE)
AND
1. MS. PRATHIBHA D
D/O DEVARAJ,
AGED ABOUT 36 YEARS
2. SRI SUNIL
S/O DEVARAJ,
AGED ABOUT 34 YEARS
3. SRI NAVEEN
S/O DEVARAJ
AGED ABOUT 28 YEARS
4. SRI RAGHU
S/O LAKSHMAN
AGED ABOUT 35 YEARS
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5. SRI RAJANI
S/O LAKSHMAN
AGED ABOUT 33 YEARS
6. SRI DEVARAJ
S/O CHIKKANNA,
AGED ABOUT 64 YEARS
7. SRI KRISHNAMURTHY
S/O CHIKKANNA,
AGED ABOUT 62 YEARS
8. SRI LAKSHMAN
S/O CHIKKANNA
AGED ABOUT 60 YEARS
9. SRI SHANKAR
S/O CHIKKANNA
AGED ABOUT 58 YEARS
ALL ARE RESIDING AT
BANNAPPA COLONY,
NEAR YELLAMMA TEMPLE
YAMLUR VILLAGE,
BENGALURU EAST TALUK,
BENGALURU - 560 037.
10. M/S. ROHAN BUILDERS (I) PVT. LTD.,
NO.1201, 1ST FLOOR,
DIVYA SHAKTI
100 FEET ROAD, INDIRANAGAR
BENGALURU - 560 038.
.....RESPONDENTS
(BY SRI. T.N. VISWANATHA, ADVOCATE FOR R1 TO R5
V/O. DT. 18.02.2020 & 12.02.2021, NOTICE TO R6 & R10;
R7, R8 & R9 RESPECTIVELY IS H/S)
THIS CRP IS FILED UNDER SEC.115 OF CPC AGAINST
THE ORDER DATED 29.07.2019 PASSED ON IA NO.1/2019 IN
O.S.NO.7952/2013 ON THE FILE OF THE XV ADDL. CITY CIVIL
AND SESSIONS JUDGE, BENGALURU DISMISSING THE IA
NO.1/19 FILED UNDER ORDER 7 RULE 11(a)(b) AND (d) OF
CPC FOR REJECTION OF PLAINT.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
04.02.2025 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE R DEVDAS
CAV ORDER
(PER: HON'BLE MR JUSTICE R DEVDAS)
This Civil Revision Petition is filed by defendant No.5
in the suit, being aggrieved of the rejection of its
interlocutory application filed under Order VII Rule
11(a)(b) & (d) of CPC.
2. For the sake of convenience, the parties shall
be referred to in terms of their ranking before the trial
court.
3. The suit is filed by the plaintiffs seeking a
declaration that the sale deed 01.08.2003 executed by
defendants No.1 to 4 in favour of defendant No.5 in
respect of the suit schedule property is null and void and
not binding on the plaintiffs. Prayer is also sought for
effecting partition of the suit schedule property and
allotment of their legitimate shares in favour of the
plaintiffs. The suit is filed in the year 2013. Defendant
No.5 filed an application seeking rejection of the plaint on
the ground that the suit is not properly valued, since
admittedly defendant No.5 is in possession of the suit
schedule property and the plaintiffs have not sought for
relief of possession. Secondly, since admittedly the
grandfather of the plaintiffs, late Sri Chikkanna acquired
the suit schedule property under registered Partition Deed
dated 06.09.1966 and he, along with his sons executed
the sale deed on 01.08.2003, in favour of defendant No.5,
the sale made by the plaintiffs fathers and grandfather
cannot be questioned by the plaintiffs. Thirdly, the suit is
barred by limitation, since the suit is filed 10 years after
the sale transaction.
4. Learned counsel for the defendant No.5 submits
that defendant No.1 is the father of plaintiffs No.1 to 3 and
defendant No.3 is the father of plaintiffs No.4 and 5.
Defendants No.2 and 4 are the brothers of defendants
No.1 and 3 and they are the uncles of the plaintiffs.
Admittedly, during the life time of Sri Chikkanna, the
grandfather of the plaintiffs, along with all his children and
his two brother Venkatappa and Subbanna have jointly
executed the sale deed in favour of defendant No.5,
thereby transferring all the rights, in favour of defendant
No.5. Moreover, the sale deed was executed on
01.08.2003, prior to the Hindu Succession (Amendment)
Act, 2005 (for short "The Act") and therefore plaintiff
No.1, the daughter of defendant No.1 cannot seek to
invalidate an alienation which took place before the 20th
day of December, 2004. Insofar as other plaintiffs are
concerned, learned counsel submitted that the plaintiffs
have not stated anything in the plaint to satisfy their
belated claim. It is simply stated in the plaint that the
plaintiffs were not aware of the sale transaction and when
they found defendants No.5 and 6 on the suit schedule
property trying to develop the property, when they
questioned defendants No.5 and 6, they were told about
the sale transaction. Plaintiffs No.1 to 4 gave an evasive
reply that they had not sold the property, but they had
entered into a Joint Development Agreement. However, it
is submitted that the Sale Deed is a registered instrument
and therefore the same is presumed to be to the
knowledge of the entire world.
5. Learned counsel has placed reliance on
M.R.Vinoda /vs./ M.S.Susheelamma - (2021) 20
SCC 180, where it was held that a Karta of a joint Hindu
family can dispose of joint family property involving the
undivided interest of a minor. That being the position, a
coparcener cannot seek an injunction restraining the Karta
from alienating the joint Hindu family property. A Karta
can alienate the property when other coparcener had
given consent. It is pointed out from the family tree that
during the lift time of Sri Chikkanna, the grandfather of
the plaintiffs, he along with his brothers Ramaiah,
Venkatappa and Subbanna, along with all the children of
Sri Chikkanna, have joined him in disposing of the suit
schedule property. Therefore, the plaintiffs cannot claim
that the sale deed executed by Sri Chikkanna, his brothers
and his children is a void document.
6. Learned counsel would also place reliance on
Shub Karan Bubna /vs./Sita Saran Bubna and others
-(2009) 9 SCC 689, where it was held that "partition" is
a redistribution or adjustment of pre-existing rights,
among co-owners/coparceners, resulting in a division of
lands or other properties jointly held by them into different
lots or portions and delivery thereof to the respective
allottees. The effect of such division is that the joint
ownership is terminated and the respective shares vest in
them in severalty. It is therefore contended that since
during the lifetime of Sri Chikkanna, the grand father of
the plaintiffs, the suit schedule property was disposed of at
the hands of Sri Chikkanna and his sons and grandsons,
the joint ownership was terminated and the respective
shares, in terms of money, vested with each of the branch
in severalty and nothing more survived for further
partition.
7. Per contra, learned counsel for the plaintiffs
placed reliance on Kuldeep Singh Pathania /vs./
Bikram Singh Jaryal - (2017) 5 SCC 345, while
contending that it is settled position of law that while
considering an application under VII Rule 11, court is
required to consider the averments made in the plaint
alone and not to look into the written statement. The
Court has to read the entire plaint as a whole to find out
whether it discloses a cause of action and if it does, then
the plaint cannot be rejected. A cause of action being a
bundle of facts which are required to be proved for
obtaining relief and for the said purpose, the material facts
are required to be stated but not the evidence except in
certain cases where the pleadings relied on are in regard
to misrepresentation, fraud, willful default, undue
influence or of the same nature, unless evidence is
recorded, court cannot reject the plaint. So long as the
plaint discloses some cause of action which requires
determination by the court, the mere fact that in the
opinion of the judge the plaintiff may not succeed cannot
be a ground for rejection of the plaint. Reliance was also
placed on Urvashiben and another /vs./ Krishnakanth
Manuprasad Trivedi - (2019) 13 SCC 372, where it
was held that merits and demerits of the matter cannot be
gone into at the stage when an application under Order VII
Rule 11 is being considered. It is fairly well settled that at
this stage only averments in the plaint have to be looked
into and from a reading of the averments in the plaint, it
cannot be said that the suit is barred by limitation.
8. Heard the learned counsels for the defendants
and the plaintiffs and perused the petition papers.
9. It is clear from the averments made in the
plaint and the prayer made therein that the plaintiffs are
seeking partition and separate possession of their
respective shares in the suit schedule property and that
they are seeking a declaration that sale deed dated
01.08.2003 executed by the plaintiffs father, uncles and
the plaintiffs grandfather is null and void and not binding
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on the plaintiffs. Copy of the sale deed is produced by the
plaintiffs along with the plaint. Admittedly, various other
joint family properties were sold under the said sale deed.
But, the plaintiffs are not seeking a partition in those
properties and are not seeking such a declaration. The
suit which was filed against defendant No.6 - M/s. Rohan
Builders, who are developing the property, has been
dismissed, at the instance of the plaintiffs. This would
mean that defendant No.6 is permitted to proceed with the
development of the suit schedule property. These facts
would become relevant in the light of the contentions
raised by defendant No.5, who purchased the suit
schedule property in the year 2003. The suit schedule
property was converted from agricultural to non-
agricultural purposes in the year 2002, before it was sold
to defendant No.5. The suit is filed in the year 2013 while
contending that the plaintiffs were not aware of the sale
made in the year 2003. Plaintiffs are aged between 22
years to 30 years when the property was sold.
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10. Insofar as plaintiff No.1 is concerned, it is a
clear case of there being no cause of action to file the suit
seeking partition. As rightly contended by the learned
counsel for the defendant No.5, plaintiff No.1 who is a
daughter claiming coparcenery rights, is barred from
seeking to re-open or question an alienation that was
made prior to 20th day of December, 2004, in terms of the
proviso to Section 6 of the Hindu Succession
(Amendment) Act, 2005.
11. Insofar as the other plaintiffs are concerned, it
would be relevant to notice a decision of a Apex Court in
the case of Sri Narayan Bal and others /vs./ Sridhar
Sutar and others (1996) 8 SCC 54, where it was held
that for the first time in the Special Leave Petition, the
competence of the Karta of the Hindu joint family,
effecting sale of the undivided interest of the minors in the
joint Hindu family property was questioned on the anvil of
Section 8 of the Hindu Minority and Guardianship Act,
1956. The Apex Court, while considering the question
whether the provisions of Section 8 of the Act, 1956 were
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applicable to the joint Hindu family property sold or
disposed of by the Karta, held as follows:
"5. With regard to the undivided interest of the
Hindu minor in joint family property, the provisions
afore-culled are beads of the same string and need to
be viewed in a single glimpse, simultaneously in
conjunction with each other. Each provision, and in
particular Section 8, cannot be viewed in isolation. If
read together the intent of the legislature in this
beneficial legislation becomes manifest. Ordinarily the
law does not envisage a natural guardian of the
undivided interest of a Hindu minor in joint family
property. The natural guardian of the property of a
Hindu minor, other than the undivided interest in joint
family property, is alone contemplated under Section 8,
whereunder his powers and duties are defined. Section
12 carves out an exception to the rule that should there
be no adult member of the joint family in management
of the joint family property, in which the minor has an
undivided interest, a guardian may be appointed; but
ordinarily no guardian shall be appointed for such
undivided interest of the minor. The adult member of
the family in the management of the joint Hindu family
property may be a male or a female, not necessarily the
Karta. The power of the High Court otherwise to appoint
a guardian, in situations justifying, has been preserved.
This is the legislative scheme on the subject. Under
Section 8 a natural guardian of the property of the
Hindu minor, before he disposes of any immovable
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property of the minor, must seek permission of the
court. But since there need be no natural guardian for
the minor's undivided interest in the joint family
property, as provided under Sections 6 and 12 of the
Act, the previous permission of the court under Section
8 for disposing of the undivided interest of the minor in
the joint family property is not required. The joint Hindu
family by itself is a legal entity capable of acting
through its Karta and other adult members of the family
in management of the joint Hindu family property. Thus
Section 8 in view of the express terms of Sections 6 and
12, would not be applicable where a joint Hindu family
property is sold/disposed of by the Karta involving an
undivided interest of the minor in the said joint Hindu
family property. The question posed at the outset
therefore is so answered."
12. The Apex Court further proceed to hold that
since the eldest member of the family acted as a Karta in
executing the sale deed and he was joined by the two
widows for themselves and as guardians of the minor
members of the joint Hindu family, as supporting
executants, that act by itself is not indicative of the minors
having a divided interest in the joint Hindu family property
commencing before or at the time of the sale. In that view
of the matter, it was held that Section 8 of the Act can be
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of no avail to the appellants claim to nullify the sale. The
appeal was accordingly dismissed.
13. It is also relevant to notice that in M.R.Vinoda
(supra), the decision cited by the learned counsel for
defendant No.5, the Apex Court has held that a Karta can
alienate the property when other coparceners have given
consent. It is also settled that a Karta may alienate the
joint family property for value, either for legal necessity or
for the benefit of the estate, to bind the interests of all the
undivided members of the family, whether they are adults
or minors or widows. A Karta has wide discretion in the
decision over the existence of legal necessity and as to in
what way such legal necessity can be fulfilled. However, it
was also held that the exercise of power and rights of
Karta is not beyond challenge on the limited ground of lack
of existence of legal necessity or absence of benefit to the
estate.
14. In this regard, when we peruse the plaint
averments, this Court finds no such contention that there
was no legal necessity to sell the property. It is only
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contended that defendants No.1 to 4 were addicted to
alcohol and they were without any worldly knowledge. It
is contended that defendant No.5, taking advantage of the
situation, got the sale deed executed, while also
contending that the sale deed itself is fabricated,
concocted and a self styled document.
15. Having analyzed these averments made in the
plaint and having regard to the two judgments of the Apex
Court, in the case of Sri Narayan Bal and M.R.Vinoda
(Supra), this Court is of the considered opinion that the
plaint is required to be rejected on the ground that the
plaintiffs lack cause of action. This view is further fortified
by the fact that the plaintiffs are not seeking partition in
respect of the other joint family properties which were also
disposed of by two generations/forefathers of the plaintiffs
under the registered sale deed dated 01.08.2003. The
contention of defendant No.5, having regard to the
dismissal of the suit as against defendant No.6, further
strengthens this view, that the plaintiffs are only seeking
to harass defendant No.5 and are seeking to extract
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money by filing the suit, ten years after the sale
transaction.
16. Consequently, the Civil Revision Petition is
allowed. The plaint in O.S.No.7952/2013 on the file of XV
Additional City Civil and Sessions Judge, Bengaluru, stands
rejected.
Ordered accordingly.
Sd/-
(R DEVDAS)
JUDGE
KLY
CT: JL
