Cheera Anusha vs Gorige Pentaiah
2026 Latest Caselaw 125 Tel

Telangana High Court

Cheera Anusha vs Gorige Pentaiah on 30 March, 2026

Author: K.Lakshman

Bench: K.Lakshman

     THE HIGH COURT FOR THE STATE OF TELANGANA AT
                      HYDERABAD

            THE HON'BLE SRI JUSTICE K.LAKSHMAN
                            AND
         THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
                     APPEAL SUIT NO.10 OF 2026
                           Dated: 30.03.2026

1.Cheera Anusha and another
                         ... Appellants-Respondent Nos.1 & 2-Plaintiffs
                                     Vs.
1.Gorige Pentaiah
                         ... Respondent No.1-Petitioner-Defendant No.1
2.Gorige Bakkamma and others
                         ... Respondents-Defendants
[R2 to R45 are not necessary parties in this appeal]

                             JUDGMENT

(per the Hon'ble Justice B.R.Madhusudhan Rao)

1. This Memorandum of Appeal is filed under Section 96 of

Code of Civil Procedure (CPC) assailing the order passed by the

learned I Additional District Judge at Bhuvanagiri in I.A.No.427 of

2023 in O.S.No.124 of 2019, dated 12.09.2025.

2. Appellants are the respondent Nos.1 and 2 - plaintiffs.

Respondent No.1 is the petitioner - defendant No.1 in I.A.No.427 of

2023 in O.S.No.124 of 2019.

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3. It is mentioned in the cause title of the appeal that

respondent Nos.2 to 45 are not necessary parties to the present

appeal.

4. Learned counsel for the appellants - respondent Nos.1 and 2

- plaintiffs submits that the learned Trial Court rejected the plaint

on the ground that the suit for partition is not maintainable and

that the learned Trial Court failed to see that by virtue of

compromise decree in O.S.No.386 of 1990, dated 28.02.1991

among the brothers and father of respondent No.1 - petitioner -

defendant No.1, 'E' schedule properties therein were allotted to

him, which remained as joint family property, wherein the

appellants - respondent Nos.1 and 2 - plaintiffs have share. The

reasoning of the learned Trial Court that on partition it became self

acquired property of respondent No.1 - petitioner - defendant No.1

is erroneous. The learned Trial Court having dismissed I.A.No.275

of 2024 on the ground that there is a cause of action for filing the

suit and also that the suit is not barred by limitation, erred in

allowing I.A.No.427 of 2023. The learned Trial Court failed to see

that the right claimed in suit is by virtue of Section 6 of the Hindu

Succession Act as amended in 2005 and the lack of expression

'coparcener' in the plaint does not in any way affect the rights of

the appellants - respondent Nos.1 and 2 - plaintiffs for partition.

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To substantiate his contention learned counsel has relied on the

decision in the case of Shyam Narayan Prasad Vs. Krishna Prasad

and Others 1 and prayed to allow the appeal.

5. Learned counsel for the respondent No.1 - petitioner -

defendant No.1 submits that the learned Trial Court has rightly

observed in the order that the appellants - respondent Nos.1 and 2

- plaintiffs did not file any document to show that the schedule

properties were acquired by respondent No.1 - petitioner -

defendant No.1 from the sale proceeds of ancestral properties

situated at Thattikhana village, Abdullapurpet Mandal. The learned

Trial Court has rightly held that the suit filed by the appellants -

respondent Nos.1 and 2 - plaintiffs is barred by limitation. Counsel

to substantiate his contention has relied on the decisions in the

cases of (i) T.Arivandandam Vs. T.V.Satyapal and Others 2 (ii)

Uttam Vs. Saubhag Singh and Others 3 (iii) Dahiben Vs. Arvindbhai

Kalyanji Bhanusali (D) thr. L.Rs. and Ors 4, (iv) Vineeta Sharma Vs.

Rakesh Sharma and Ors. 5, (v) Angadi Chandranna vs. Shankar

and Others 6 (vi) S.Sampoornam Vs. C.K.Shanmugam and Others 7

(2018) 7 SCC 646

MANU/SC/0034/1977

MANU/SC/0256/2016

MANU/SC/0508/2020

MANU/SC/0582/2020

MANU/SC/0528/2025

MANU/TN/2426/2022

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(vii) Nachiketa Kantibhai Patel and Others Vs. Kantibhai

Ishwarbhai Patel and Others 8 and prayed to dismiss the appeal.

6. Learned counsel for the appellants - respondent Nos.1 and 2

- plaintiffs has filed synopsis and learned counsel for respondent

No.1 - petitioner - defendant No.1 has given list of dates.

7. Now the point for consideration is: whether the order passed

by the learned Trial Court suffers from any perversity or illegality,

if so, does it require interference of this Court?

8. Appellants - respondent Nos.1 and 2 - plaintiffs have filed

suit under Order VII Rule 1 read with Section 26 of CPC against

the respondents - defendants to pass a preliminary decree

declaring the plaintiffs and defendant No.1 as 1/3rd share holders

each out of the suit schedule 'A' to 'T' properties; to appoint an

advocate commissioner as per the preliminary decree with metes

and bounds and to pass final decree as per the report of the

advocate commissioner and to declare (44) registered sale deed

document No.7309/2010, dated 27.09.2010, (46) registered sale

deed document No.21872/2018, dated 24.10.2018 and (45)

registered agreement of sale cum irrevocable GPA with possession

vide document No.21871/2018, dated 24.10.2018 of SRO

MANU/GJ/1186/2025

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Yadagirigutta as null and void and not binding on the plaintiffs

[appellants herein].

9. It is stated in the plaint that the appellants - respondents

Nos.1 and 2 - plaintiffs are the own sisters and respondent No.1 -

petitioner - defendant No.1 is their father, they are born to their

natural mother namely Bakkamma and they jointly constitute a

Hindu Joint Family governed by Mithakshara School of Hindu Law.

Originally respondent No.1 - petitioner - defendant No.1 has

acquired ancestral properties at Thattikhana village,

Abdullapurmet Mandal in Survey No.25, admeasuring Ac.20-15 gts

towards his share and he sold the said lands, with the said

amounts purchased schedule properties on his name and also on

the names of the respondent Nos.2 to 5 - defendant Nos.2 to 5. The

suit schedule properties are the joint family properties and are

liable for partition. The suit schedule A to T properties are shown

in paragraph Nos.5 to 24 of the plaint. Respondent No.1 -

petitioner - defendant No.1 behind back of respondent No.2 -

defendant No.2, who is his first wife kept respondent No.5 -

defendant No.5 as his concubine and though her he begot

respondent Nos.3 and 4 - defendant Nos.3 and 4. Respondent

Nos.1 to 5 - defendant Nos.1 to 5 have alienated suit schedule H, I,

J and T properties to different persons under different documents.

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Appellants - respondent Nos.1 and 2 - plaintiffs have demanded

respondent No.1 - petitioner - defendant No.1 to partition the

properties in the month of May 2019 but he has postponed the

same. On 05.07.2019 appellants - respondent Nos.1 and 2 -

plaintiffs demanded the respondent No.1 - defendant No.1 for

cancellation of registered documents and also for amicable

partition of the suit schedule properties but they bluntly refused,

which forced them to file suit for partition.

10.1 Respondent No.1 - petitioner - defendant No.1 has filed

I.A.No.427 of 2023 under Order VII Rule 11(a) & (d) read with

Section 151 of CPC to reject the plaint as there is no cause of

action, barred by amended Hindu Succession Act and the

Limitation Act.

10.2 The affidavit filed by respondent No.1 - petitioner - defendant

No.1 states that the plaint is silent with regard to the date and year

of alienation of ancestral properties situated at Thattikhana village,

Adbullapurpet Mandal. During the life time of father of respondent

No.1 - petitioner - defendant No.1, he alienated all his ancestral

properties and as such the properties covered under the suit

schedule properties are his self acquired properties and his family

members have no right to question the same during his life time.

Section 6(1) of Hindu Succession Act is clear that the disposition or

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alienation, partition or testamentary disposition which have taken

place before 20.12.2004 cannot be challenged. The documents filed

along with the plaint are much prior to the said amendment and

the suit is barred by amended Hindu Succession Act.

10.3 Appellants - respondent Nos.1 and 2 - plaintiffs have filed

their counter contending that suit is not barred by limitation and

cause of action subsists and the contentions raised by respondent

No.1 - petitioner - defendant No.1 in the affidavit have to be

decided during the course of trial.

11.1 It is to be noted here that respondent No.5 - defendant No.5

has also filed an application i.e., I.A.No.275 of 2024 in O.S.No.124

of 2019 under Order VII Rule 11(a) & (d) read with Section 151 of

CPC to reject the plaint for lack of cause of action and barred by

limitation.

11.2 Appellants - respondent Nos.1 and 2 - plaintiffs have filed

counter and contested the application. The learned Trial Court has

dismissed I.A.No.275 of 2024 and observed in paragraph Nos.7 and

8 as under:

"7. ... The plaintiffs have pleaded in the cause of action paragraph in plaint that they demanded the defendant no.1 for partition in May, 2019 and demanded for cancellation of registered documents and for amicable partition in July, 2019 but the defendants refused for the same and thus, the cause of action arose.

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They did not clearly state how the suit is within limitation but have only stated that the suit is filed within the period of limitation under Articles 114 and 54 of the Limitation Act. However, as the respondents/plaintiffs have pleaded that the plaint has been filed within the period of limitation as the defendant no.1 and other defendants refused for amicable partition and for cancellation of documents on specified dates, this Court finds that the contention of petitioner that the plaint is barred by limitation is untenable.

8. With regard to the contention of petitioner that she has purchased K schedule property through a registered sale deed vide document No.68/2019, dt: 7-12-2018 and that she acquired T schedule property from her husband, who is respondent herein/defendant No.1 from her shreedhana, and that her husband in turn acquired the same from Ashanna, Ushanna and Karre Rajaiah through an ordinary sale deed and that the same was implemented in the revenue records, the same has to be proved through cogent evidence in trial. Unless the same is proved, application of section 14 of the Hindu Succession Act does not arise. Therefore, this Court finds no merits in this petition."

12. Insofar as I.A.No.427 of 2023 filed by the respondent No.1 -

defendant No.1 to reject the plaint, the learned Trial Court

observed in paragraph Nos.10, 11 and 13, which reads as under:

"10. ... The schedule properties having been purchased by the petitioner herein even as per the documents relied on by the respondents/plaintiffs, he can deal with those properties as he likes and none can seek for their partition during his lifetime, and as he is alive, testementary disposition does not arise. The petitioner herein having acquired his share along his brothers and father as joint owner of the schedule properties in O.S.No. 386/1990 through and Compromise Decree, dt: 28.2.1991, this Court finds that the purchases, if any made by him with the sale proceeds of 'E- schedule property" that was allotted to him in the compromise Decree shall be deemed to be self-acquired properties only as per settled law and

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that the respondents/plaintiffs cannot lay claim for partition in the said properties. Moreover, by virtue of the aforesaid proviso to Section 6(1), the respondents/plaintiffs cannot question the partition since it was by a Compromise Decree made by the Court, long before 20th December, 2004.

11. ... Apparently, the respondents/plaintiffs claimed share in the suit schedule properties as members of Hindu joint family and that the schedule properties are Hindu Joint Family Ancestral Properties, and not as coparceners. However, as the respondents/plaintiffs did not file any document to show that the suit schedule properties were acquired by petitioner/defendant no.1 from the sale proceeds of ancestral properties situated at Thattikhana village that were inherited from his forefathers, and as the documents filed by the plaintiffs are inconsistent to their claim, and as the children/plaintiffs cannot seek for partition of self acquired properties of their father/petitioner herein during his life time as they do not qualify to be termed as "Heirs" as defined under Section 3(f) of the Hindu Succession Act, 1956, this Court finds that the plaint is barred by law.

13. The present suit is clearly an abuse of process of law as the respondents/plaintiffs' claim is barred by law. When their main relief for partition is not maintainable, the consequential relief sought for declaration of registered deeds as null and void and not binding on the plaintiffs also must fail. For all the aforesaid reasons, this Court finds that the plaint is liable to be rejected for being barred by law. The point is accordingly answered."

13. It is settled principle of law that the property inherited by a

male Hindu from his father, father's father or father's father's

father is an ancestral property. The essential feature of ancestral

property, according to Mitakshara Law, is that the sons,

grandsons, and great grandsons of the person who inherits it,

acquire an interest and the rights attached to such property at the

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moment of their birth. The share which a coparcener obtains on

partition of ancestral property is ancestral property as regards his

male issue. After partition, the property in the hands of the son will

continue to be the ancestral property and the natural or adopted

son of that son will take interest in it and is entitled to it by

survivorship. See: Shyam Narayan Prasad1.

14.1 In T.Arivandandam2 the Apex Court held that "If clever

drafting has created the illusion of a cause of action, nip it in the

bud at the first hearing."

14.2 In Uttam3 the Apex Court observed that insofar as joint

family property governed by Mitakshara School, prior to the

amendment of 2005, could therefore be summarized as follows:

(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.

(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.

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14.3.1 Under Order VII Rule 11 of CPC, 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.

14.3.2 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.

14.3.3 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 and

Anr., MANU/SC/0951/2003: (2004) 9 SCC 512 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, decree would be passed.

In Hardesh Ores (P.) Ltd. v. Hede & Co. MANU/SC/7671/2007: (2007) 5 SCC 614 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

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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.

14.3.4 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 Code of Civil

Procedure.

14.3.5 "Cause of action" means every fact which would be

necessary for the Plaintiff 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 Plaintiff to prove in order to entitle him

to the reliefs claimed in the suit. See: Dahiben4.

14.4. In Vineeta Sharma5 Three Judge Bench of the Apex Court

has answered the reference as under:

(a) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(b) The rights could be claimed by the daughter born earlier with effect from the date of commencement of Amendment Act with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the date on which the Hindu Succession (Amendment) Bill, 2004 was introduced in the Rajya Sabha.

(c) Since the right in coparcenary was by birth, it was not necessary that father coparcener should be living as on date of commencement of Amendment Act.

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(d) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 were required to be given full effect. Notwithstanding that a preliminary decree had been passed the daughters were to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(e) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition could not be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition was supported by public documents and partition was finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone could not be accepted and to be rejected outrightly.

14.5 In Angadi Chandranna6 the Apex Court held that 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.

14.6 In S.Sampoornam7 Madras High Court held that 'after the

Hindu Succession Act, 1956 came into force, this position has

undergone a change. Post 1956, if a person inherits a self-acquired

property from his paternal ancestors, the said property becomes

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his self-acquired property, and does not remain coparcenary

property'.

14.7 In Nachiketa Kantibhai Patel8 High Court of Gujarat at

Ahmedabad held that 'before commencement of the 1956 Act if a

property had been impressed with the character of a coparcenary

property it remained the same and it would devolve as per Section

6 of the Act. However, if the property was not a coparcenary

property before commencement of the 1956 Act and succession

opened after 1956 Act of a self-acquired property, it would be

transferred only as an individual property and no coparcenary

would be created thereafter of such property'.

15. As stated supra, at one breath, the leaned Trial Court while

deciding the rejection of plaint application filed by respondent No.5

- defendant No.5 in I.A.No.275 of 2024, arrived at a conclusion

that the suit is not barred by limitation and the application of

Section 14 of Hindu Succession Act does not arise. While deciding

the rejection of plaint application filed by respondent No.1 -

petitioner - defendant No.1 in I.A.No.427 of 2023 arrived at a

conclusion that the suit is barred by law. I.A.No.275 of 2024 filed

by respondent No.5 - defendant No.5 is under Order VII Rule 11 (a)

and (d) of CPC read with Section 151 of CPC so also I.A.No.427 of

2023 filed by respondent No.1 - petitioner - defendant No.1 is also

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under Order VII Rule 11 (a) and (d) of CPC read with Section 151 of

CPC. Prayer made in both the applications is to reject the plaint as

lack of cause of action, barred by limitation and barred by

amended Hindu Succession Act.

16.1 On careful reading of the plaint at paragraph No.3 appellants

- respondent Nos.1 and 2 - plaintiffs contended that they

constitute a joint Hindu Family governed by Mithakshara School of

Hindu Law. The learned Trial Court has not discussed about the

same in the impugned order. But learned Trial Court considered

the merits of the case stating that the respondent No.1 - petitioner

- defendant No.1 can deal with those properties as he likes and

none can seek for their partition during his life time as he is alive,

testamentary dispossession does not arise. The learned Trial Court

has not considered the documents filed by the appellants -

respondent Nos.1 and 2 - plaintiffs along with the plaint.

16.2 Appellants - respondent Nos.1 and 2 - plaintiffs have filed

I.A.No.276 of 2024 in O.S.No.124 of 2019 under Order VII Rule 14

of CPC to receive khasra pahani for the year 1954-55 (2 in number)

and other pahanis of different survey numbers including C.C. of

compromise judgment in O.S.No.386 of 1990 total 29 documents.

The learned Trial Court having dealt with compromise judgment in

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O.S.No.386 of 1990 failed to look into other documents and failed

to discuss the same.

17. The learned Trial Court has taken inconsistence views in

both the orders and this Court is of the view that this is a fit case

to remand the matter to the learned Trial Court to decide the

matter afresh. We are not expressing any opinion on the merits of

the case and leaving it open to the learned Trial Court to decide the

application in accordance with law preferably within a period of

one month from the date of receipt of the order.

18. In the result, A.S.No.10 of 2026 is allowed and the order

passed by the learned I Additional District Judge at Bhuvanagiri in

I.A.No.427 of 2023 in O.S.NO.124 of 2019, dated 12.09.2025 is set

aside and the matter is remanded back to the learned Trial Court

as observed in the order. There shall be no order as to costs.

Interim orders if any stands vacated, miscellaneous petitions

if any shall stand closed.

_________________________ JUSTICE K.LAKSHMAN

_____________________________________ JUSTICE B.R.MADHUSUDHAN RAO 30.03.2026 Dua