Madras High Court
Nischal Ramkumar vs Ramesh Babu on 10 June, 2025
2025:MHC:1465
A.S(MD)No.28 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 12.03.2025
Pronounced on : 10.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE P.VADAMALAI
A.S(MD)No.28 of 2025
and
C.M.P(MD)Nos.3614 and 1410 of 2025
Nischal Ramkumar
represented by his Power of Attorney Agent,
K.Kamalanathan. ... Appellant/Respondent/
Plaintiff
Vs.
1.Ramesh Babu
2.Shanthi ... Respondents/Petitioners/
Defendants 4 & 5
PRAYER :- This Appeal Suit is filed under Section 96 of the Civil Procedure
Code, to set aside the judgment and decree dated 28.06.2024 passed in I.A.No.26
of 2024 in O.S.No.52 of 2022 on the file of the Additional District Judge, Tenkasi.
For Appellant : Mr.S.Srinivasa Raghavan
for Mr.S.I.Muthiah
For Respondents : Mr.S.Kadarkarai
1/18
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A.S(MD)No.28 of 2025
JUDGMENT
This Appeal is directed against the judgment and decree, dated 28.06.2024
passed in I.A.No.26 of 2024 in O.S.No.52 of 2022 on the file of the learned
Additional District Judge, Tenkasi.
2. The appellant is the plaintiff in O.S.No.52 of 2022 on the file of the
Additional District Court, Tenkasi. The respondents are the defendants 4 and 5 in
that suit.
3. For the sake of convenience, the parties are referred to as per their rank in
the trial Court.
4. The brief facts are as below:
(i) The plaintiff has filed the main suit to declare that the plaintiff is entitled
to 1/8 share in the suit properties and consequential permanent injunction against
the defendants 1 to 5. The suit properties are consisting of as many as 16 items in
I Schedule and 19 items in II Schedule. It is the case of the plaintiff that the suit
I Schedule and some other properties originally belonged to one Venkatasamy,
who had two sons Srinivasan, the 1st defendant herein, and Lingava Naciker.
The two sons partitioned the properties on 29.08.1972. The 1st defendant is a
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doctor, whose education expenditure were born out from the income of ancestral
properties. The 1st defendant is bedridden for the past 10 years as he is suffering
memory loss and is not able to move. Taking advantage of his inability, the
4th defendant, who is one of his son, in order to grab the properties, created false
documents as if they were executed by the 1st defendant. The plaintiff came to
know the fact in December, 2021 and asked his father, the 2nd defendant herein,
and the 2nd defendant gave evasive reply. Hence, the plaintiff filed the suit.
(ii) On receipt of summons, the respondents, who are defendants 4 and 5,
appeared and filed petition in I.A.No.26 of 2024 in O.S.No.52 of 2022 under
Order 7 Rule 11 (a) of CPC, to reject the plaint on the ground that the first
defendant was allotted properties on the basis of compromise decree passed by the
Hon'ble High Court in A.S.Nos.298 of 1993 and 706 of 1991 on 25.04.2022.
The first defendant being doctor by profession purchased properties from out of
his own income. Thereafter, the first defendant executed registered settlement
deed, dated 13.07.2022 in favour of 4th defendant and his son in respect of first
defendant's separate properties. Then, the 4th defendant established power loom
factory and thereby earned much. Out of that income, the 4th defendant purchased
suit schedule II properties. Thereby, the items 1 to 13 and 18 of suit II Schedule
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are absolute properties of 4th defendant and item No.14 therein absolutely belongs
to son of 4th defendant. Knowing the above facts, the plaintiff filed the suit stating
as if the suit properties were joint family properties. The plaintiff was neither in
joint possession nor having title over the suit properties. Moreover, the plaintiff is
the grandson of first defendant and son of second defendant. So, as per Hindu
Succession Act the plaintiff cannot file suit against his own grandfather and father
during their life time. The suit is also hit by Order 2 Rule 2 of CPC.
(iii) The plaintiff contested the petition to reject the plaint and filed a
counter.
5. After hearing both and after perusal material records, the trial Court has
allowed the petition on 28.06.2024 and thereby, rejected the plaint.
6. Aggrieved by the judgment and decree of the trial Court, dated
28.06.2024, the plaintiff has preferred this appeal.
7. The point for consideration in this appeal is;
Whether the trial Court's order in allowing the petition filed under Order
7 Rule 11(a) of CPC, and rejecting the plaint is legally valid?
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8. The learned counsel for the appellant/plaintiff has argued that the trial
court's observation that the plaintiff ought to have prayed for partition, instead the
plaintiff filed suit for declaration as a reason to reject the plaint is not sustainable.
Even otherwise, the trial Court has inherent power to mould the relief and can
grant a lesser relief of partition. As the plaintiff valued the suit for declaration at
Rs.14,88,413/- and paid a Court fee of Rs.44,662/-, if he valued the suit for
partition, then a Court fee of Rs.5,000/- is sufficient. Since the plaintiff paid more
court fee, there is no bar for the Court to grant such lesser relief. The defendant
the filed suit for partition in which the plaintiff is not a party and the plaintiff's
father had not signed the alleged compromise in A.S.No.706 of 1991. So, the
compromise decree would not bind the plaintiff. The plaintiff challenged the Wills
and settlement deeds which have been allegedly executed by the first defendant
when he was bedridden for the past 10 years. So, these documents should have
been proved as per Sections 63 and 68 of the Indian Evidence Act and also
evidence need to be adduced. Moreover, the plaintiff's father/the 2nd defendant
executed a Will defeating the right of the plaintiff. All these facts can be resolved
only after considering the oral and documentary evidences. A plaint can only be
dismissed if the plaint averments did not disclose a cause of action or barred by
any law and that is not the case herein. But, the trial Court has wrongly interpreted
the plaint averments, while observing the suit ought to have been filed for
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partition. The contentions raised by the defendants in the petition for rejection are
all debatable and they are mixed questions involving facts and law. These can be
decided only after full fledged trial. The learned counsel concluded the arguments
by submitting that the trial court has not considered all these aspects and passed
erroneous order and hence, the same has to be set aside by allowing this appeal.
In support of his contentions, the learned counsel for the plaintiff relied on the
judgment of the Hon'ble Supreme Court reported in (1999) 3 Supreme Court
Cases, 267 (D.Ramachandran /v/ R.V.Janakiraman).
9. Per contra, the learned counsel for the respondents/defendants 4 and 5 has
vehemently put forth his argument stating that the suit itself is not maintainable by
suppression of real facts. The plaintiff cannot maintain a suit for partition against
his father and grandfather who are alive, since the plaintiff is not the class.1 legal
heir as per provisions of Section 8 of Hindu Succession Act. The plaintiff himself
averred in the plaint that the ancestral properties were partitioned by means of
partition deed, dated 29.08.1972 between the first defendant and his brother
Lingavanaicker in which the suit items 4 to 9 and 12 to 16 of I schedule were
allotted to the first defendant Dr.Srinivasan. The first defendant has purchased
some other properties from his income as he is a doctor by profession. While the
sons of Lingavanaicker filed a suit in O.S.No.72 of 1986 of Sub Court, Tenkasi,
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the matter settled and a compromise was arrived before the Hon?ble High Court in
A.S.No.298 of 1993 and A.S.No.706 of 1991, accordingly compromise decree was
passed on 25.04.2022. As per that compromise decree items 4 to 9 and 12 to 16 of
I schedule were allotted to the first defendant. Even though the plaintiff's father,
the 2nd defendant herein filed SLP.No.22802 of 2022 before the Hon'ble Supreme
Court, the same was dismissed on 29.08.2023. When a partition was effected in
respect of ancestral properties, the share allotted to the first defendant became his
absolute properties and he has every right to execute registered settlement deed,
dated 13.07.2022 in favour of the defendants 4 and 5. The first defendant has also
conveyed certain properties to the second defendant, who is the father of the
plaintiff. The plaintiff has not included those properties. There is no Will as
alleged by the plaintiff, the Wills were cancelled. Moreover, when the plaintiff
claims the properties are joint family property he could not maintain a suit against
his own father and grandfather during their life time. Hence, there is no cause of
action for the suit. Though subsequent to suit, the first defendant died, it has no
impact or effect. Moreover, the father of the plaintiff is still alive and hence, the
suit is not maintainable as the trial Court rightly rejected the plaint by allowing the
petition filed under Order 7 Rule 11(a) of CPC.
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10. The learned counsel for the respondents relied on the following
citations:
1) 1977 AIR 2421 (T.Arivandandam vs.
T.V.Satyapal & Anr.)
2) 2005 (3) CTC 545 (N.V.Srinivasa Murthy and
Ors. vs. Mariyamma (Dead) by Proposed LRs. and Ors.)
3) Order passed in CRP (PD) No.1992 of 2012
(N.Babu vs. S.Shanmugam and 2 Ors.)
4) 2015 (5) CTC406 (Dhanalakshmi and Ors.
vs. Saraswathy and Ors.)
5) (2015) 7 MLJ 129 (Dr.L.Ramachandran and
Anr. vs, K.Ramesh and Ors,)
6) (2018) 4 MLJ 79 (S.Venkatasubramaniam and
Ors. vs. Ramani and Ors.)
7) (2018) 4 MLJ 428 (K.Vidhya vs. K.Sumithra)
8) AIR 2020 Supreme Court 3310 = 2020 SAR
(Civ) 793 (Dahiben vs. Arvindbhai Kalyanji Bhanusali
(Gajra) (D) Thr LRs & Ors.)
9) 2025(1) CTC 631 (M.Vijayaraman vs,
Petchiammal @ Jegatha and 2 Ors.)
10) 2014(1) CTC 73 (Arunagiri vs. Ayyar
Muthuraja and Ors.)
11) 2014(1) CTC 188 (Karthik V.R. Thondaiman
and Anr. vs. Rajagopala Thondaiman and Ors.)
12) (2016) 2 MLJ 536 (SC) (Uttam vs, Saubhag
Singh and Ors.)
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13) 2023 (2) CTC 81 (Maheswari and Anr. vs,
N.Raman Pillai and 3 Ors.)
14) 2023 SAR (Civ) 283 (Sanjiv Kumar Singh vs.
The State of Bihar & Ors.)
15) 2015 3 Curr CC442 (Kusumi Mallik vs.
Pirabala Das)
11. From perusal of records and from the arguments, it is clear that the
plaintiff has filed the suit for the following reliefs:
(a) To declare that the plaintiff is entitled 1/8
share in the plaint schedule properties and consequently
praying for a permanent prohibitory injunction
restraining the defendants and their agents, to alienate
the share of the plaintiff in the plaint schedule
properties;
(b) to order for rendition of accounts of the
income of the properties described in the plaint schedule
properties from the year 2011 to till disposal of the suit.
12. The case of the plaintiff is that the suit properties are the ancestral
properties and as the grandson of the first defendant, he is entitled to 1/8th share in
the suit properties. Though the relief claimed seems to be in the nature of
declaration infact it is really a suit for partition. Mere clever drafting or
camouflage drafting can not hide the nature of the relief. The payment of Court fee
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is secondary thing the real intention behind this suit the plaintiff wanted to
ascertain his share in these properties as a right by birth. The defendants 4 and 5
filed the present petition under Order 7 Rule 11(a) of CPC, to reject the plaint on
the ground that there is no cause of action as the suit properties are not ancestral
properties and they are absolute properties of the defendants 1, 4 and 5. The trial
Court allowed the petition on the ground that the plaintiff ought to have sought for
the relief of partition and also the plaintiff could not maintain a suit as against the
living grandfather and father.
13. Before further deliberation it is necessary to revisit Order 7 Rule 11 of
CPC, which is as follows:
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 is under-valued,
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 property 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;
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(f) where the plaintiff 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
plaintiff was prevented by any cause of an exceptional
nature from correcting 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 plaintiff.
14. The Hon'ble Supreme Court in catena of judgments has settled that to
reject a plaint under Order 7 rule 11 of CPC, the plaint averments alone have to be
taken into consideration and this Court also concerned only with the plaint
averments. Likewise mere terming, calling or alleging a property as Ancestral
Properties will not clothe the property as Ancestral one. The character of a
property be it as a self acquired/individual property or Ancestral/joint hindu
family property has to be determined only from the way,mode and source they
acquired. Equally it is true that when succession opened U/s.8 of the Hindu
Succession Act any property acquired by a heir is his individual property. In this
case on hand, the plaintiff has clearly averred that the I schedule properties and
some other properties originally belonged to one late.Venkatasamy, who had two
sons 1st defendant Srinivasan and Lingava Naicker and a daughter Seeniammal
through his wife Mangammal. After death of the aforesaid Venkatasamy, the first
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defendant Srinivasan and his brother Lingava Naicker had partitioned the
properties by virtue of registered partition deed, dated 29.08.1972.
15. It is relevant to refer the judgment of Hon'ble Supreme Court reported in
2019 (5) CTC 110 in the case of Arshnoor Singh vs. Karpal Kaur and Others,
wherein it has been held that "If succession opened under the old Hindu law, i.e.,
prior to the commencement of the Hindu Succession Act, 1956, the parties would
be governed by Mitakshara Law. The property inherited by a male Hindu from his
Paternal male Ancestor shall be Coparcenary property in his hands vis-a-vis his
male descendants upto three degrees below him. The nature of property will
remain as Coparcenary property even after the commencement of the Hindu
Succession Act, 1956". On understanding the allegations, the original owner of
the properties was one Venkatasamy. When the properties were partitioned and
succession was opened after the death of the above said venketasamy that too after
1956 then his class I heirs alone, in this case his children alone entitled to succeed
and they acquired, inherited the properties as their individual cum self acquired
property. Moreover, the ancestor Venketasamy left a daughter as class I heir.
The position being thus,at no stretch of imagination it can be called or termed as
Ancestral property. Even if the defendants wrongly mentioned as Ancestral or
joint family property, the property can not lost its character. In the instant case on
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hand, the plaintiff has not shown any other income except the income derived by
the first defendant. So any properties acquired by the first defendant became his
self acquired property.
16. The Hon'ble Supreme Court in numerous cases held that once property
is partitioned under Section 8 of the Hindu Succession Act, then the property lost
its coparcenary character and the shares acquired by the parties become their
absolute and self acquired properties. Recently in a case, the Hon'ble Supreme
Court has reiterated the same view in its judgement, dated 22.04.2025 rendered in
CIVIL APPEAL No.5401 of 2025 between Angadi Chandranna /v/ Shankar
& Others : 2025 INSC 532, wherein it is held in paragraph Nos.17, 18 and 19 as
follows:
“17. It cannot be disputed that the properties
divided among Defendant No.1 and his brothers
through partition deed dated 09.05.1986, are joint
family properties. However, as per Hindu law, after
partition, each party gets a separate and distinct
share and this share becomes their self-acquired
property and they have absolute rights over it and
they can sell, transfer, or bequeath it as they wish.
Accordingly, the properties bequeathed through
partition, become the self acquired properties of the
respective sharers.
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18. Apparently, the plaintiffs did not question
the partition deed (Ex.P1) effected among the
brothers. It states that the respective parties shall
hereinafter enjoy the properties allotted to their share
with a right to sell, lease, gift, encumber, etc. The
partition deed further reveals that the suit property
was allotted to C.Thippeswamy, one of the brothers of
Defendant No.1; and Defendant No.1 was allotted 10
acres of land, which was different from the suit
property measuring 7 acres 20 Guntas allotted to the
said C.Thippeswamy. It also proceeds to state that
after the death of the father Channappa, the joint
family became unmanageable due to difference of
opinion among the members and therefore, they
decided that it was not good to stay together and
partitioned the lands allotted to them. Thus, the
intention of the parties and the recitals in the partition
deed establish that the parties wanted to go their
separate ways and did not want the property to
remain as joint family property.
19. As reiterated above, after the joint family
property has been distributed in accordance with law,
it ceases to be joint family properties and the shares
of the respective parties become their self-acquired
properties. Hence, the suit property acquired by
Defendant No.1 became his self-acquired property, on
being sold by his brother Thippeswamy to him, vide
sale deed dated 16.10.1989.......”.
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17. In the instant case, the plaintiff himself averred that the first defendant
Srinivasan and his brother Lingava Naicker had partitioned the ancestral
properties by virtue of registered partition deed dated 29.08.1972 and the above
partition was not challenged by the plaintiff rather it was confirmed by this Court
in A.S.No.298 of 1993 and A.S.No.706 of 1991. Therefore, as per plaint
averments, the first defendant became absolute owner of the properties allotted to
him in the partition deed dated 29.08.1972.
18.Thus being the position the plaintiff being the son of 2nd defendant
Ramkumar who is none other than one of the son of 1 st defendant Dr.Srinivasan,
and the plaintiff has filed the suit as against his own grandfather and father during
their life time in respect of properties of the first defendant, as such the trial court,
has correctly come to the conclusion that the plaintiff cannot maintain a suit as
against his own grandfather and father during their life time, as the plaintiff would
not come to class.I heir as per Section 8 of the Hindu Succession Act. Even for
the sake of argument, even if the 1st defendant dies intestate, his son namely the
2nd defendant and other sons and daughter would alone inherit his properties.
Even the death of the first defendant during pendency of suit has no impact or
effect in the above conclusion. In such circumstances, the trial Court has correctly
come to the decision that the plaintiff has no cause of action for the suit and the
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same is liable to be rejected,and the judgment and decree of the trial Court is
sustainable in law and the same need not be interfered by way of this appeal. Thus,
the appeal fails.
19. In the result,
(i) This appeal is dismissed.
(ii) The judgment and decree, dated 28.06.2024 passed in I.A.No.26 of 2024
in O.S.No.52 of 2022 on the file of the learned Additional District Judge, Tenkasi,
is confirmed.
(iii) No costs.
(iv) Consequently, connected Civil Miscellaneous Petitions are closed.
10.06.2025
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
VSD
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To
1.The Additional District Judge,
Tenkasi.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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P.VADAMALAI, J.
VSD
Pre-Delivery Judgment made in
and
C.M.P(MD)Nos.3614 and 1410 of 2025
10.06.2025
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