Madras High Court
P.Gopal vs Gandhi on 8 December, 2021
C.R.P.(PD).No.1007 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2021
CORAM
THE HON'BLE MR.JUSTICE S.S.SUNDAR
C.R.P.(PD).No.1007 of 2019
and
C.M.P.No.6676 of 2019
P.Gopal ... Petitioner
Vs.
Selvaraj (died)
1. Gandhi
2. Ramesh
3. Suresh
4. Amlu ... Respondents
Civil Revision Petition is filed under Article 227 of the Constitution of
India, to set aside the fair and decreetal order dated 19.02.2019 in I.A.No.2 of
2019 in O.S.No.1591 of 2004 on the file of the Principal District Munsif, Salem.
For Petitioner : Mr.K.Selvaraj
For Respondents : Mr.P.Jagadeesan
https://www.mhc.tn.gov.in/judis
1/9
C.R.P.(PD).No.1007 of 2019
ORDER
This Civil Revision Petition is directed against the order passed by the
Learned Principal District Munsif, Salem in I.A.No.2 of 2019 in O.S.No.1591 of
2004.
2. The revision petitioner herein is the 2nd defendant in the suit in
O.S.No.1591 of 2004 filed before the District Munsif Court, Salem. The suit
was filed for partition and separate possession of 1/10th share in the suit
properties to the plaintiffs and to declare the settlement deed dated 12.12.2003
executed in favour of the defendants as void and unenforceable. The suit is
also for a permanent injunction restraining the defendants and their men from
in any way putting up any construction in the suit property.
3. It is seen from the averments in the plaint that one Periyathambi
Gounder (died) had three sons namely P.Govindan, P.Sadaiyan and P.Gopal.
P.Govindan is the 1st defendant in the suit and his son Selvaraj is the 1st
plaintiff in the suit. The plaintiffs 2 to 5 are the legal heirs of Selvaraj who died
intestate on 29.08.2010.
4. In Paragraph 4 of the plaint, it is admitted as follows :
“The suit properties are originally belonged to one
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C.R.P.(PD).No.1007 of 2019
Periathambi Gounder who is the father of the defendants 1 and 2
and grandfather of the plaintiffs and other defendants. The said
Periathambi Gounder purchased the suit properties for proper
and valuable consideration as per the sale deed dated
26.06.1984. The said Periyathambi Gounder purchased the
properties out of his own income and he died intestate on
17.06.1983 leaving behind him the plaintiffs and defendants.”
5. Since the properties originally belonged to Periathambi Gounder, the
father of 1st defendant and it is admitted by the plaintiffs that the property was
purchased by the said Periathambi Gounder out of his own income and he
died intestate on 17.06.1983, the property left by Periathambi Gounder will
devolve only on his Class 1 heirs under Section 8 of the Hindu Succession
Act, 1956.
6. The plaintiffs in the present suit who are the son, grandsons, grand
daughter and daughter in law of P.Govindan are not entitled to any share in the
suit property during the lifetime of P.Govindan. Since the suit itself is filed
during the life time of P.Govindan, it is not maintainable.
7. The 2nd defendant in the suit namely the brother of the 1st defendant
filed an application under Order 7 Rule 11 CPC to reject the plaint in
O.S.No1591 of 2004. It is stated in the petition that the plaintiffs have no cause
of action to file the suit and that the suit is not maintainable. It is also stated that
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C.R.P.(PD).No.1007 of 2019
the suit is barred by Order 9 Rule 9 CPC as the previous suit in O.S.No.134 of
1994 filed by the 1st defendant was dismissed for default and hence no fresh
suit is maintainable.
8. The petition filed by the 2nd defendant in I.A.No.2 of 2019 was
dismissed by the Lower Court on the ground that the plaint cannot be rejected
under Order 9 Rule 9 CPC. Though the 2nd defendant raised the plea of
resjudicata, the same was also rejected by the Lower Court holding that the
earlier suit was not dismissed on merits. Ultimately, the petition filed by the 2 nd
defendant was dismissed by the Lower Court. Aggrieved by the same, the
above Civil Revision Petition has been filed by the revision petitioner / 2 nd
defendant.
9. The learned counsel appearing for the revision petitioner fairly
conceded that the plaint cannot be rejected either under Order 9 Rule 9 CPC
or under Section 11 of CPC. However, the learned counsel submitted that the
plaint is to be rejected on the ground that it does not disclose any cause of
action.
10. Referring to Paragraph 4 of the plaint, the learned counsel for the
revision petitioner submitted that the suit filed during the life time of the 1st
defendant is not maintainable as there is no cause of action for the plaintiffs to
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C.R.P.(PD).No.1007 of 2019
file a suit for partition. The learned counsel for the revision petitioner relied
upon the full bench judgment of this Court in the case of “The Additional
Commissioner of Income-tax, Madras Vs. P.L.Karuppan Chettiar, Karur”,
wherein, the Hon'ble Full Bench had taken a view that irrespective of the
question whether the property was an ancestral property in the hands of the
father, the father would exclude his son, if the grand father died after 1956
leaving behind his self acquisition.
11. When it is admitted that the grandfather acquired the property out of
his own income, the property will be the self acquired property of the grand
father. After the advent of the Hindu Succession Act 1956, the self acquired
property of a male hindu devolves only under Section 8 of the Hindu
Succession Act 1956. Applying Section 8 of the Act, the defendants 1 and 2
alone will inherit the property from the father. The plaintiffs who are the son,
grand sons, grand daughter and daughter in law of the 1 st defendant are not
entitled to inherit the property along with the father. As pointed out earlier, the
father will exclude his son while getting the property from his father under
Section 8 of the Hindu Succession Act 1956. This position is reiterated by
several judgments of this Court as well as the Hon'ble Supreme Court. Very
object of Hindu Succession Act 1956 will be defeated if the present suit filed by
the son is held maintainable during the life time of his father.
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C.R.P.(PD).No.1007 of 2019
12. Accordingly, this Court, though rejects the other contentions raised
by the learned counsel for the revision petitioner, is convinced that the plaint is
liable to be rejected on the ground that it does not disclose a cause of action.
Though the learned counsel appearing for the respondents made a
submission on merits, this Court is unable to agree with the contentions in view
of the specific statement in Paragraph No.4 of the plaint. It is to be noted that
the 1st defendant can maintain a fresh suit for partition as the cause of action
survives in a suit for partition till the property is divided by metes and bounds.
Bar under Order 9 Rule 9 is not applicable to partition suits.
13. As a result, this Civil Revision Petition is allowed and the plaint in
O.S.No.1591 of 2004 is rejected. No costs. Consequently, connected
miscellaneous petition is closed.
08.12.2021
raja
Index : yes/no
Internet : yes/no
Speaking Order/Non-Speaking Order
To
The Principal District Munsif Court, Salem
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.1007 of 2019
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.1007 of 2019
S.S.SUNDAR.J.,
raja
C.R.P.(PD).No.1007 of 2019
and
C.M.P.No.6676 of 2019
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.1007 of 2019
08.12.2021
https://www.mhc.tn.gov.in/judis
