Madras High Court
S.Shanthi vs K.Subramani on 3 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.No.419 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 03.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
A.S.No.419 of 2024
S.Shanthi .. Appellant
Versus
K.Subramani .. Respondent
First Appeal filed under Section 96 of C.P.C against the Impugned Fair and
Decreetal order dated 18.08.2022 in I.A.No.04 of 2021 in O.S.No.62 of 2020
on the file of the learned III Additional District Judge, Tiruvallur at
Poonamallee.
For Appellant : Mr.S.Sudarshan
For Respondent : M/s. Mehek Asrani
JUDGMENT
The Appeal is filed by the Plaintiff in O.S.No.62 of 2020 against the
order passed by the learned III Additional District and Sessions Judge,
Tiruvallur at Poonamallee in I.A.No.4 of 2021 in O.S.No.62 of 2020.
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2. The parties to the dispute are referred to as per the status before the
learned III Additional District and Sessions Judge, Tiruvallur at Poonamallee
as Plaintiff and Defendant. The Appellant will be referred as Plaintiff and the
Respondent will be referred as Defendant-1.
3. The Plaintiff had filed the suit in O.S.No.62 of 2020 claiming the
relief of partition against the Defendant-1 and Defendant-2. Defendant-1 is
the husband of the Plaintiff. Defendant-2 is the younger brother of the
Husband of the Plaintiff. The claim of the Plaintiff is that the suit properties
were purchased by the income derived by the Plaintiff and the brother in law
of the Plaintiff. The Defendant-2 had been in the business of the construction
of civil contracts and money lending. The Defendant-1, the husband of the
Plaintiff retired from the Indian Army and after retirement he has no income,
as he is unemployed and since he happens to be the eldest member among the
three, the properties were acquired in his name by the funds of the Plaintiff and
her brother in law, the Defendant-2. Therefore, the properties are joint family
properties in the name of Karta of the family, the Defendant-1 who happens to
be the Husband of the Plaintiff. The cause of action for the suit arose on
06.08.2002 when the suit schedule 'A' Property was purchased on 03.06.2005,
when the suit schedule 'B' property had been purchased on 23.03.2001, when
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the suit schedule 'C' property was purchased on 19.09.2005 and when the suit
schedule 'D' property was purchased on 01.02.2018. The Plaintiff entered into
rental agreements on 01.04.2019 and 20.12.2019 respectively and the Plaintiff
lodged Police Complaint on 20.01.2020 at T-3, Police Station, Korattur on
various other subsequent dates that the Defendant-1 tried to collect rents from
the tenants and threatened the Plaintiff. When the Plaintiff sent legal notice
dated 07.02.2020 claiming partition against the Defendant-1 and Defendant-2.
The legal notice sent to Defendant-1 returned on 08.02.2020 as 'No such
person' and the legal notice sent to the Defendant-2 was served with
acknowledgment dated 08.02.2020.
4. The suit was resisted by the Defendant-1 claiming that he served in
the Indian Army for 20 years and during his service in the Indian Army, he
used to send money to his wife. Based on the remittances by the Husband for
20 years, the properties were acquired in his name. The Plaintiff was a house
wife and she did not have any independent income as claimed by her. The suit
was filed as a collusive suit by his younger brother who is unemployed and his
wife. Also in the written statement he claimed that the Plaintiff had illicit
relationship with her brother in law.
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5. After filing of the written statement, the Defendant-1, husband of the
Plaintiff had filed petition under Order VII Rule 11 C.P.C seeking to reject the
plaint.
6. The main ground seeking to reject the plaint is that the wife does not
have birth right in the joint family. To a Hindu wife, to have share in the joint
family, the right accrues only after the death of her husband. Therefore, there
is no cause of action seeking partition. Therefore, the Defendant-1 as
Petitioner sought rejection of the plaint. The petition was resisted by the
Plaintiff as Respondent stating that the points raised in the petition cannot be
considered to reject the plaint and the plaint averments alone had to be
considered for which evidence is required. After hearing the arguments of
both parties, the learned III Additional District and Sessions Judge, Tiruvallur
at Poonamallee by order dated 18.08.2022 allowed I.A.No.4 of 2021 in
O.S.No.62 of 2020. The petition under Order VII Rule 11 C.P.C was allowed
thereby the plaint in O.S.No.62 of 2020 was rejected.
7. Aggrieved the Plaintiff had preferred this Appeal seeking to set aside
the order of the learned III Additional District and Sessions Judge, Tiruvallur
at Poonamallee dated 18.08.2022 in I.A.No.4 of 2021 in O.S.No.62 of 2020.
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8. The learned Counsel for the Appellant, the Plaintiff before the learned
III Additional District and Sessions Judge, Tiruvallur at Poonamallee had
placed reliance on the reported decisions in the cases of
(i) Owners and Persons interested in the Vessel MT Titan Vision vs.
KTV Health Food Pvt. Ltd reported in 2014 SCC OnLine Mad 12328, where
it is held as follows:
40.It is the next fold of submission of the learned counsel for the
defendant that the plaintiff has not filed the original Bills of Lading at
the time of filing the suit; only after issuance of notice to produce the
Bills of Lading, the plaintiff has produced the third original Bills of
Lading during the course of argument, which contains the following
endorsement_ 'Pay/delivery to M/s.KTV Health Foods Pvt Ltd., or to
order, as agents for collection According to the learned counsel for the
defendant, failure on the part of the plaintiff to produce at least one of
the three original Bills of Lading, which are all materials and should
have been in the exclusive possession of the plaintiff as
owner/endorsee/consignee/holder, is fatal to the suit; in other words,
non-production of the Bills of Lading, which contains the banker's valid
endorsement, at the time of obtaining the interim order of arrest, would
amount to suppression of material facts. Thus, according to the learned
counsel for the defendant, the plaint is liable to be rejected.
41.But, in my considered opinion, non-production of original Bills of
Lading containing the banker's valid endorsement, cannot serve as a
ground to reject the plaint. In this regard, a reference could be placed in
the judgment, relied upon by the learned counsel for the plaintiff,
reported in AIR (3) 1943 Mad 645 (Minor Munuswamy Mudaliar v.
Chengalvaraya Naicker), wherein it has been held as follows_ The only
grounds on which a plaint can be rejected are set out in Order VII, Rule
11, Civil Procedure Code. The non-production of a document on which
the plaintiff relies is not one of the reasons. In Rule 14 of the same order
a plaintiff is required to produce in Court when the plaint is presented
any document sued upon which is in his possession or power; but even if
the decree be considered to be such a document, the punishment for the
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non-production of such a document is not the rejection of the plaint, but
that set out in Rule 18 of Order VII., viz., that the document shall not,
without the leave of the Court, be received in evidence on his behalf at
the hearing of the suit
(ii) Eldeco Housing and Industries Limited v. Ashok Vidyarthi and
Others reported in 2023 SCC OnLine SC 1612, particularly in para 23.11 it is
held as follows:
23.11. The test for exercising the power under Order 7 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.Litd v. M.V.Sea Success I [Liverpool & Lonon S.P. & I Assn.Ltd v.
M.V.Sea Success I, (2004) 9 SCC 512] which reads as: (SCC p. 562,
para 139)
“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.”
iii) K.Thakshinamoorthy and another v. The State Bank of India
reported in 2001-3-L.W.83, wherein it is held as follows:
12. In view of the rival submissions made by the respective
counsel, it is to be first considered as to whether the averments
contained in the plaint disclose any cause of action for the
plaintiff to maintain the suit. It is the submission of the learned
Counsel for the petitioners that except the averments made in
paragraph 9 of the plaint, there are no other averments in the
plaint to sustain a cause of action. Per contra, the submission of
the learned counsel for the respondent is that while considering
the question of cause of action this Court has to consider the
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averments contained in the entire plaint and the Court cannot
dissect the pleadings into several parts and by relying upon the
averments in one paragraph, the Court cannot reject the plaint.
On going through the plaint, it is true that in paragraph 9 of the
plaint, the plaintiff has stated that “the plaintiff is waiting for the
ultimate report of the CBI, the investigating agency for fuller
information, details and particulars of the fraudulent activities of
the defendants for the purpose of taking the necessary civil action
for recovery of monies misappropriated by the defendants.
However in paragraphs 4 to 9, the plaintiff has clearly mentioned
the fraud that was played by the petitioners herein over the bank
and the misappropriation committed by the 1st defendant while he
was serving as an Officer of the Bank. While considering an
application under Order 7, Rule 11 of C.P.C this Court has
necessarily to take into consideration of the entire averments
made in the plaint as a whole and cannot come to a conclusion
only on the basis of the averments made in a particular
paragraph. If the entire averments made in paragraphs 4 to 10
of the plaint is taken into consideration, I have no doubt in my
mind that the plaintiff has a cause of action to file a suit.
iv) Pawan Kumar v. Babulal reported in (2019) 4 Supreme
Court Cases 367, wherein it is held as follows:
13. In the present case, the controversy has arisen in an
application under Order VII Rule 11 CPC. Whether the matter
comes within the purview of Section 4(3) of the Act is an aspect
which must be gone into on the strength of the evidence on
record. Going by the averments in the Plaint, the question
whether the plea raised by the appellant is barred under Section
4 of the Act or not could not have been the subject matter of
assessment at the stage when application under Order VII Rule
11 CPC taken up for consideration. The matter required fuller
and final consideration after the evidence was led by the parties.
It cannot be said that the plea of the appellant as raised on the
face of it, was barred under the Act. The approach must be to
proceed on a demurrer and see whether accepting the averments
in the plaint the suit is barred by any law or not.
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v) Manickathammal and Others v. Nallasami Pillai and Others
reported in 89 L.W Part 23 Page 419, in which it is held as follows:
This is a very peculiar case in which the plaintiff is seeking
for the equitable relief of specific performance basing his claim
solely on the recitals in Ex.A-1. In construing deeds which speak
by themselves, but which speech is likely to affect some parties to
it, the Court should take the precaution of seeing that the
document is not only technically proved but the recitals therein
are true. The Courts ought not to, as a matter of course, adopt
the recitals as true if a genuine doubt by reason of the
circumstances and the evidence let in this case arises wand which
would prompt the Court to require a much better standard of
proof of the recitals rather than accepting the recitals as such
without any further expatiation of the same. In such cases where
the courts are compelled to probe into the realities of the
situation and the truth of the recitals the Courts jurisdiction to
buttress such recitals has been recognized consistently by our
Court na dthe Supreme Court. Such recitals may be telling and
forcible but yet, they might require further proof for acceptance
by a court of law.
In support of his contention that the recitals in the document cannot be
solely relied without recording evidence regarding those documents.
9. It is the contention of the learned Counsel for the Appellant that the
learned Judge had rejected the plaint on consideration of the documents filed
by the Plaintiff and not on the pleadings of the Plaintiff. Therefore, the order
passed by the learned III Additional District and Sessions Judge, Tiruvallur at
Poonamallee is perverse and is to be set aside.
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10. The learned Counsel for the Respondent vehemently objected to the
line of arguments of the learned Counsel for the Appellant. It is the contention
of the learned Counsel for the Respondent that the Husband had filed
H.M.O.P. seeking divorce against the Plaintiff herein. All the properties had
been purchased by the Defendant-1 in the suit in O.S.No.62 of 2020. The
Husband had filed H.M.O.P seeking divorce against the wife under the claim
of adultery. The sale deeds were registered in the name of the Defendant-1 in
O.S.No.62 of 2020.
11. The learned Counsel for the Respondent invited the attention of this
Court to Paragraphs 5, 6, 10 and 15 of the plaint averments, which are
extracted hereunder:
5. The Plaintiff submits that the suit schedule properties
are Hindu undivided family properties purchased by the Plaintiff
and her brother-in-law 2nd defendant out of their own income,
savings and from joint family income the Plaintiff and 2nd
Defendant jointly constructed a residential house in Schedule 'A'
and commercial shopos in Schedule 'B' out of their own funds for
the welfare of the entire family. The 1st defendant was an ex-
serviceman at the time of purchase of the suit schedule property
and did not have proper source of income at that time. As the 1 st
defendant is the eldest member of the family, the properties were
purchased in his name out of respect given to him as per Hindu
customs. In Hindu customary manner the suit schedule
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properties were registered in the name of the Kartha of the family
1st defendant showing due respect to him. It is the Plaintiff and
2nd Defendant who are maitaining and taking care of suit
schedule property.
6. The Plaintiff submits that the plaintiff's husband i.e the 1st
defendant did not have sufficient income for purchase of the
property or to put up construction. It was the Plaintiff and 2nd
Defendant who contributed their entire savings, income for
putting up the superstructure. The income for the Plaintiff was
through various sources like Civil Construction contracts, money
lending transactions, Real estate transactions and rental income
from property other than suit property absolutely belonging to
Plaintiff. The 1st defendant has not done anything either to take
care of the family or to raise funds to purchase anyone of the
properties. As a Kartha of the family it is his duty to take care of
the entire family. He should try to raise the funds for the welfare
of the entire family. But he acted as a free man without
maintaining the family/family members.
10. The Plaintiff submits that on 20.01.2020, the 1st defendant
created unnecessary problems by way of demanding rent from the
tenants in the shops situated in the suit property. This act of the
1st defendant creates various problems among the family. Due to
this act of the 1st Defendant, the Plaintiff has approached the T3,
Police Station, Korattur and lodged a complaint against the 1st
defendant stating that “her husband is trying to collect rent in
respect of shops, when enquired, he threatened her with dire
consequences”. A CSR No.93/2020 dated 20.01.2020 was issued
and further action was withdrawn by the Plaintiff for maintaining
the harmony and peace in the Hindu Joint family.
15. The Plaintiff submits that, the Plaintiff and 2nd Defendant
have an antecendent title and therefore, there is no conferment of
title on the 1st defendant. Hence, at any case the 1st defendant did
not become the absolute owner of the property. There are other
joint family properties also which exist in the name of the 1st
defendant and the 2nd defendant which proves that the claim of
the Plaintiff is genuine. The plaintiff has no worldly knowledge,
she is taking care of the 1st defendant, but the 1st defendant by
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playing fraud upon her, the alleged sale deeds got registered by
him purchasing the entire suit schedule property in his name.
12. The entire averments of the plaint if considered, the claim of the
Plaintiff is contradictory. On the one hand, the plaint averments states that the
properties were purchased in the name of Defendant-1. In the same plaint
averments, it is stated Defendant-1, Husband of the Plaintiff was previously
worked in the Indian Army. Therefore, it gives a presumption that he had
earnings, he had savings. Through his savings, the properties were acquired
which contradicts to such claim. She claims that she is the ostensible owner.
The claim made in the plaint that the Plaintiff and the Husband and brother in
law constitute a Hindu Joint family itself is against the concept of Joint family
as per the provisions of Hindu law. “Para 5, 10 and 15, which are all
contradictory averments. The claim of partition by the wife against the
Husband in a self-acquired property is not maintainable. The learned III
Additional District Judge, Tiruvallur at Poonamallee had considered the entire
plaint averments and accordingly arrived at a conclusion that the suit filed by
the wife for partition against the Husband by the wife is not maintainable as
the cause of action arise only after the death of the Husband in case of
Husband and his brother. If the partition suit is to be considered by the Court,
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the Plaintiff has to prove her case how she is entitled. As per the plaint
averments and the documents filed along with plaint are in favour of
Defendant-1. The Plaintiff as wife of the Defendant-1 had been in receipt of
the rent from the tenants. There had been dispute between the husband and the
wife regarding receipt of rent. The suit in O.S.No.62 of 2020 is collusive suit
between the brother in law of he Plaintiff and the Plaintiff. Defendant-2 in the
suit had no business or employment. The plaint averments in para 1, 2 and 3
claims that they constitute Hindu undivided family, which is against provisions
of Hindu law. As per the provisions of Hindu law, how the wife is entitled to
claim partition when the Husband is alive? The Plaintiff had filed the suit as if
the sister of Defendant-1 and Defendant-2. In that case, it is maintainable.
When she claims to be the wife of the Defendant-1 and claims partition when
the Husband is alive, the suit itself is not maintainable.
13. The learned Counsel for the Respondent relied on the following
reported decisions in the following cases:
(i) in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali reported in
(2020) 7 Supreme Court cases 366, wherein it is held as follows:
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 to put an end to the sham litigation, so
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that further judicial time is not wasted.
23.6 Under Order 7 Rule 11, a duty is case 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.
23.8 Having regard to Order 7 Rule 14 CPC, the documents filed
along with the plaint, are required to be taken into consideration
for deciding the application under Order 7 Rule 11(a). When a
document referred to in the plaint, forms the basis of the plaint, it
should be treated as a part of the plaint.
23.13 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 7 Rule 11 CPC.
23.15 The provisions of Order Rule 11 is mandatory in nature. It
states that the plaint “shall” be rejected if any of the grounds
specified in clauses(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 aw, the Court has no option, but to reject the
plaint.
24.4 if, however, by clever drafting of the plaint, it has created the
illusion of a cause of action, this Court in Mandanuri Sri Rama
Chandra Murthy v. Syed Jalal, 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.
26. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe
the period of limitation for filing a suit where a declaration is
sought or cancellation of an instrument, or rescission of a
contract, which reads as under:
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Description of suit Period of Time from which period begins
Limitation to run
58. To obtain any other Three years When the right to sue first
declaration accrues
59. To cancel or set aside an Three years When the facts entitling the
instrument or decree or for the plaintiff to have the instrument or
rescission of a contract decree cancelled or set aside or
the contract rescinded first
become known to him.”
29.18. The delay of over 5 and ½ years after the alleged cause of
action arose in 2009, shows that the suit was clearly barred by
limitation as per Article 59 of the Limitation Act, 1963. The suit
was instituted on 15-12-2014, even though the alleged cause of
action arose in 2009, when the last cheque was delivered to the
plaintiffs. The plaintiffs have failed to discharge the onus of
proof that the suit was filed within the period of limitation. The
plaint is therefore, liable to be rejected under Order 7 Rule 11(d)
CPC.
(ii) In the case of Ramisetty Venkatanna and another v. Nasyam Jamal
Saheb and Others reported in 2023 SCC OnLine 521, in which it is held as
follows:
28. Applying the law laid down by this Court in the
aforesaid decisions on the applicability of Order VII Rule XI to
the facts of the case on hand, we are of the opinion that the plaint
ought to have been rejected in exercise of powers under Order
VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of
action and barred by limitation. By clever drafting and not
asking any relief with respect to partition deed dated 11.03.1953,
the plaintiffs have tried to circumvent the provision of limitation
act and have tried to maintain the suit which is nothing but abuse
of process of court and the law.
(iii) In the case of Akshat Mittal and Others v. Renu Mittal and Others
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reported in 2023 SCC OnLine Del 1239, in which it is held as follows:
19. A reference to the plaint in the present case shows that
it is claimed that ownership of the property by late Sh. Praveen
Kumar Mittal in his name was in the nature of a Joint Hindu
Family property. Such a bald averment in itself cannot create an
HUF unless it is pleaded and established that late Sh. Praveen
Kumar Mittal inherited the properties from his paternal ancestors
prior to 1956 or that late Sh.Praveen Kumar Mittal created an
HUF by throwing his own properties into a common hotchpot.
These essential averments are completely missing in the plaint
and therefore, making a casual statement regarding the existence
of an HUF does not mean that the necessary factual cause of
action, as required in law, has been shown to be arisen.
Cause of Action
24. While scrutinizing the averments in the plaint, it is the
bounden duty of this Court to ascertain the material for
highlighting and showing the cause of action for filing the suit. It
is also worthwhile to find out the meaning of the words “cause of
action”.
25.The cause of action is bundle of facts which, along with the
application of the law prevailing, gives the plaintiff the right to
seek relief against the defendant. Every fact which is necessary
for the plaintiff to prove to enable him to get a decree is to be set
out in clear terms. A cause of action must include some
acts/omissions done/omitted to be done by the defendant. In the
absence of such an act/omission being contended and shown in
the pleadings, no relief can possibly accrue to the parties that
have approached the Court of law.
29. In view of the pronouncements of Hon'ble Supreme Court, it is
clear that if the allegations are vexatious and meritless and do
not disclose a clear right or material to sue, it is the duty of the
Court to exercise its powers under Order VII Rule 11 and reject
the plaint at the outset. If clever drafting has created the illusion
of a cause of action, it should be nipped in the bud at the first
hearing of examining the parties under Order X of the CPC. It is
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mandatory that in order to get a relief, the plaintiff avers all
material facts before the Court. In other words, it is necessary
for the plaintiff to aver and prove the very cause of action for
approaching the Court in order to succeed in a suit.
33. The averments made in relevant paragraphs of the plaint
reproduced as above cannot be said to be the legal and factual
averments required to be made for showing the existence of a
cause of action with respect to HUF and its properties. It is also
found that there is only ipse dixit of the Plaintiff claiming the
joint properties being purchased from the joint funds, however, in
law joint funds or joint properties are not equal to HUF funds/
HUF properties or business.
36. The Plaintiffs have attempted to make unfounded and
unsubstantiated submissions and contentions regading the suit
property being an HUF property, thereby seeking its partition,
however, they have miserably failed to show as to how the suit
property came to be an HUF property. The plaintiffs have further
failed to establish their entitlement in seeking the reliefs as
sought before this Court.
(iv) In the case of Colonel Shrawan Kumar Jaipuriyar v. Krishna
Nandan Singh and another reported in (2020) 16 Supreme Court Cases 594,
where in it is held as follows:
8. In the aforesaid background, it is to be held that the plaint does
not disclose any cause of action for the relief prayed, that is, a
direction to the second respondent to execute and register a sale
deed in favour of the first respondent and to put the first
respondent in possession. There does not exist any legal right
which the plaintiff or the first respondent is entitled to invoke and
enforce; For a right to exist, there must be a corelative duty
which can be enforced in a law suit. A right cannot exist without
an enforceable duty. Ownership means a bundle of rights which
would normally include the right to exclude and transfer the
property in a manner one wants, subject to contractual
obligations as agreed or statutory restrictions imposed on the
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owner. In the present case, the pleadings fail to establish
violation of a statutory right or breach of a contractual
obligation which creates an enforceable right in the court of law.
In the absence of any such right or even a claim, the plaint would
not disclose cause of action.
(v) In the case of Jayamati Narendra Shah v. Narendra Amritlal Shah
reported in 2014 SCC OnLine Bom 4682
19. The claim by a wife during the lifetime of the husband in the
share and interest which he has as a coparcener in his HUF is
wholly premature and completely misconceived. Such bequest
under the Will does not show the title of the deceased to such
property. The deceased, therefore, could not have bequeathed
any “monies” as “my share” in the 1/3 share which her husband
had in the H.U.F in which he was a coparcener along with his
brothers, father and sons. Consequently, the injunction in respect
of such property cannot be granted as claimed.
(vi) In the case of Ananda Krishna Tate v. Drajupadibai Krishna Tate
reported in 2010(3) Mh.L.J, where it is held as follows:
The important observation in the said judgment is that
“The Plaintiff not being a coparcener was not entitled to demand
partition.” If these observations are considered, to my mind, the
Plaintiff did not have a right to claim partition of the joint family
property at all. I have not referred to the judgment of this Court
1975 Mh.L.J 682 = AIR 1975 Bombay 257, Sudhilabai Kulkarni
v. Narayanarao Deshpande since the very same judgment, is
referred to in AIR 1978 SC 1239, The suit itself was
misconceived. As a result, the appeal will have to be allowed and
the judgments and decree passed by the Courts below are set aside
and the suit dismissed.
(vii) In the case of Jayamati Narendra Shah (Deceased) Uday
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Narendra Shah v. Narendra Amritlal Shah reported in 2014 SCC OnLine
Bom 81, where in it is held as follows:
8. The deceased was the wife of the defendant. She was not
a member of his joint Hindu family except as his wife. It is only
when the defendant would constitute HUF for the purpose of his
succession that his wife may be shown as the member of the HUF.
The wife of a Hindu Coparcener that his wife may be shown as
the member of the HUF. The wife of a Hindu Coparcener in a
HUF is not a Coparcener. She does not get any interest by virtue
of her birth in her marital family. Only a person who would
derive an interest by virtue of his/her birth in a family would
become a Coparcener, a Coparcenery being a much narrower
body than a Hindu Joint Family.
11. The aforesaid principles of law show that in a HUF only
sons (vertically) and brothers (laterally) would constitute a
coparcenary in a joint Hindu family; their wives may be
members of the joint Hindu family but are not coparceners.
The proprietary rights are of a coparcener if the joint
Hindu family owns any joint property. The wives of
coparceners do not get any interest in the joint property
owned and held by coparceners who are co-owners. The
wives of the co-owners do not get any interest by virtue of
their birth. It is only a Hindu widow who get the interest of
her husband in the coparcenary or joint family property
upon the death of her husband. That interest enables her
to claim maintenance and residence. Only a widow can
demand partition of the interest which her deceased
husband would have been entitled.
(viii) In the case of Raghwendra Sharan Singh v. Ram Prasanna
Singh reported in (2020) 16 Supreme Court Cases 601, wherein it is held as
follows:
8. At this stage, it is required to be noted that, as such, the
plaintiff has never prayed for any declaration to set aside the gift
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deed. We are of the opinion that such a prayer is not asked
cleverly. If such a prayer would have been asked, in that case,
the suit can be said to be clearly barred by limitation considering
Article 59 of the Limitation Act and therefore, only a declaration
is sought to get out of the provisions of the Limitation Act, more
particularly, Article 59 of the Limitation Act. The aforesaid
aspect has also not been considered by the High Court as well as
the learned trial Court.
Point for consideration
Whether the order passed by the learned III Additional District
Judge, Tiruvallur at Poonamallee in I.A.No.04 of 2021 in
O.S.No.62 of 2020 is perverse?
14. Heard the learned Counsel for the Appellant and the learned Counsel
for the Respondent. Perused the plaint in O.S.No.62 of 2020. Perused the
reported decisions in support of the rival submissions.
15. On consideration of the rival submissions, it is found that the plaint
averments is contradictory to each other. The Plaintiff claims to be the wife of
the Defendant-1. She claims that she and the Defendant-2, the younger brother
of the Defendant-1constitute a joint family. The Defendant-1, the Husband of
the Plaintiff served in the Indian Army and retired. As on the date of filing of
the suit, the Husband of the Plaintiff, Defendant-1 is not employed and having
no source of income. The properties were purchased by the Plaintiff and the
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Defendant-2 who had involved in civil construction and money lending
business. From those sources, they had acquired properties. Since the
Defendant-1 is the head of the joint family, they had acquired the properties in
the name of Defendant-1, the Husband of the Plaintiff as the Karta of the joint
family. In para 7, she claims that she is the absolute Ostensible owner, when
the property documents are in the name of the Defendant-1. Therefore, as
pointed by the learned Counsel for the Respondent in this Appeal, Defendant-1
before the trial Court, the parties to the dispute before the learned III
Additional District and Sessions Judge, Tiruvallur at Poonamallee as Plaintiff
and Defendant. Appellant will be referred as Plaintiff.
16. The main contention of the learned Counsel for the Defendant-1
before the trial Court was that the suit for partition by the wife of a Hindu
Male is not maintainable during the lifetime of the Hindu Male, as per the
provisions of the Hindu law governing partition. The cause of action for the
suit for partition by the widow or wife of a Hindu Male arises only after the
death of the Hindu male. Therefore, the cause of action for the suit for
partition by the wife as Plaintiff herein had not arisen. The Husband is alive.
Further, as per the plaint averments, suit properties stands in the name of the
Husband. Therefore, whatever is averred in the plaint, as though the
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properties were acquired by the wife and the brother in law cannot be
considered by the Court, when the Plaintiff had stated that the Husband was
serving in the Indian Army and retired from Indian Army. Therefore, the
properties acquired in the name of the Husband is the self-acquired property of
the Husband. Regarding self-acquired properties, the suit for partition is not
maintainable. As rightly pointed out by the learned Counsel for the Defendant-
1, when the Husband is alive, the wife cannot seek partition. The right to sue
for partition accrues on a Hindu women against the properties left by her
Husband only after the death of her husband. For that preposition, it is held in
the case of Akshat Mittal and Others v. Renu Mittal and Others reported in
2023 SCC OnLine Del 1239 and for the cause of action it is held in the case of
Shrawan Kumar Jaipuriyar alias Sarwan Kumar Jaipuriyar v. Krishna
Nandan Singh and another reported in (2020) 16 Supreme Court Cases 594
and Jayamati Narendra Shah v. Narendra Amritlal Shah reported in 2014
SCC OnLine Bom 4682
17. The reported decisions cited by the learned Counsel for the
Defendant-1 is found applicable to the facts and circumstances of the case.
Therefore, the plaint averments does not give out a case for cause of action for
a suit for partition by the wife against the Husband. By all means, the
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averments in the plaint are contradictory and does not give out a case for
partition. It is to be considered as vexatious suit. As per the reported decision
cited by the learned Counsel for the Defendant-1 plaint to be rejected if it is
vexatious and illusory cause of action as per the reported decision in the case
of Ramisetty Venkatanna and another v. Nasyam Jamal Saheb and Others
reported in 2023 SCC OnLine 521.
18. The reported decisions cited by the learned Counsel for the
Appellant had clearly stated that the Court dealing with rejection of the plaint
shall consider only the plaint averments. The Appeal had been filed by the
Plaintiff claiming that the learned Judge had considered documents also while
rejecting the plaint. It is true that the learned Judge had considered the
documents also. Even if the document are not considered, by plaint averments
itself, as pointed by the learned Counsel for the Defendant-1, it is
contradictory to each other. The averments in the plaint are contradictory to
each other. On the one hand Plaintiff claims that her Husband had served and
retired from Indian army. In another place, the properties had been purchased
in her Husband name, by the income from her own income, from own civil
contract business. Further she would state that she as ostensible owner and
even though the properties stand in the name of Husband, the claim that the
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Husband and wife and the brother in law constitute a Hindu undivided family
itself is against the provisions of concept of Hindu joint family as per Hindu
law. Therefore, by all means, the averments in the plaint is found vexatious.
Above all, the cause of action for a Hindu women to seek partition of a joint
family property arises only after the death of her husband. If the Defendant-1
and Defendant-2 are considered as joint family, then the suit for partition is
maintainable by the wife after the death of the Husband. On the other hand, if
the Plaintiff is the sister of the Defendant-1 and Defendant-2 and the
Defendant-1 and Defendant-2 had inherited the property of their parents, then
the sister can seek partition of 1/3 share. Here, the facts are not so. The
Plaintiff claimed to be the wife of Defendant-1 and who seeks partition from
the self-acquired property of Defendant-1 which is not maintainable as on the
date of the filing of the suit, as per the provisions of Hindu law governing
partition. Therefore, in all probabilities, the suit for partition by the wife is not
maintainable as per the reported decisions in the case of Jayamati Narendra
Shah v. Narendra Amritlal Shah reported in 2014 SCC OnLine Bom 4682
and in the case of Ananda Krishna Tate v. Draupadibai Krishna Tate reported
in 2010 SCC OnLine Bom 292 is applicable to the facts of this case.
19. The reported decisions cited by the learned Counsel for the
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Appellant in the cases of (i) Owners and Persons interested in the Vessel MT
Titan Vision v. KTV Health Food Pvt. Ltd, (ii) Eldeco Housing and
Industries Limited v. Ashok Vidyarthi and Others (iii) K.Thakshinamoorthy
and another v. The State Bank of India (iv) Pawan Kumar v. Babulal
reported in (2019) 4 Supreme Court Cases 367; (v) Manickathammal and
Others v. Nallasami Pillai and Others
20 By the said reported decisions, the plaint pleadings can be considered
for rejecting the plaint as per Order VII Rule 11. Even though, the learned
Judge had considered the documents also, this Court as Appellate Court
considered the plaint averments only. As rightly pointed out by the learned
Counsel for the Defendant, the plaint averments itself is vexatious. When the
Husband is alive, She is seeking partition for which she is not entitled as per
the reported decisions in the case of Jayamati Narendra Shah v. Narendra
Amritlal Shah reported in 2014 SCC OnLine Bom 4682 and in the case of
Ananda Krishna Tate v. Draupadibai Krishna Tate reported in 2010 SCC
OnLine Bom 292. Therefore, this Appeal has no merit.
21. The order passed by the learned III Additional District and Sessions
Judge, Tiruvallur at Poonamallee in I.A.No.04 of 2021 in in O.S.No.62 of
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2020 dated is found well reasoned oder. Even though, he had relied on
documents also, this Court does not consider documents. This Court had
considered only the plaint averments and the plaint averments itself is found
vexatious, since the Husband is alive. If the status of the wife is altered by a
competent Civil Court on the matrimonial site in which case, she has a cause
of action to claim maintenance for which she can take action against the
property of the Husband as such she his not entitled to partition as per plaint
averments. Therefore, the Appeal has no merits. Point for consideration is
answered in favour of the Defendant-1 and against the Plaintiff.
In the result, the Appeal Suit is dismissed. The judgment of the learned
III Additional District and Sessions Judge, Tiruvallur at Poonamallee in
I.A.No.4 of 2021 in O.S.No.62 of 2020 is confirmed.
03.06.2025
Shl
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
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SATHI KUMAR SUKUMARA KURUP, J.
shl
To
1. The III Additional District and Sessions Judge,
Tiruvallur at Poonamallee.
Judgment made in
03.06.2025
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