IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR M.S.A.No.47 OF 2017(CPC) BETWEEN:
Smt.K.S.Bharathi, W/o.Sri H.S.Nanjunda Swamy, Aged about 64 years, R/o.No.2410, I Cross, Hosabandikere, K.R.Mohalla, Mysuru – 570 001.
(By Sri Ravindra Babu, Advocate) AND:
1. Smt.Bhagyamma, W/o.Sri K.T.Nelegowda, Aged about 47 years, R/o.No.486, Bogadi Village, Mysuru – 26.
2. Sri Kenche Gowda, S/o.Chamundegowda, Aged about 49 years, R/o.Balla Halli Village, Jayapura Hobli, Mysuru Taluk – 570 004.
... Appellant 3. Smt.Puttamma, W/o.Sri Nagaraj, Aged about 49 years, R/o.Naganahalli Village, Mysuru Taluk – 570 004.
4. Sri Prashantha, S/o.Sri H.S.Nanjunda Swamy, Aged about 34 years, R/o.No.2410, I Cross, Hosabandikere, K.R.Mohalla, Mysuru – 570 004.
Sri Inchara House Building Co-operative Society, Represented by its Executive Director.
5. Sri Manjunath Rao, Aged about 50 years, R/o.F-10, 702/A, 4th Cross, Ramanuja Road, Khille Mohalla, Mysuru – 570 004.
6. Smt.Ningarajamma, W/o.Late Sri Chamundegowda, Aged about 72 years, R/o.No.71, Bogadi Village, Gaddige Main Road, Mysuru – 570 004.
...Respondents This appeal is filed under Order XLIII Rule 1(u) of CPC against the judgment and decree dated 02.02.2017 passed in R.A.No.99/2015 on the file of the IV Additional District Judge, Mysuru, allowing the appeal and setting aside and restoring the order dated 05.03.2015 passed on I.A.No.2 in O.S.No.895/2013 on the file of the I Additional Senior Civil Judge and CJM, Mysuru, allowing the I.A.No.2 filed under Order 7 Rule 11(d) of CPC, consequently rejecting the plaint and etc.
This appeal coming on for admission, this day, the Court delivered the following:
JUDGMENT This appeal is filed by the fourth defendant in O.S.No.895/2013 on the file of I Additional Senior Civil Judge, Mysuru. The first respondent in this appeal filed a suit for partition in respect of the suit property. In the said suit the appellant made an application under Order 7 Rule 11 (d) of CPC for rejection of the plaint on the ground that the suit property had been sold on 16.11.2004 in her favour and since the sale was prior to the amendment brought to Section 6 of Hindu Succession Act, suit for partition was not maintainable. The Trial Court allowed the application and rejected the plaint.
Aggrieved by this order of the Trial Court, the plaintiff preferred an appeal in R.A.No.99/2015 before the District Court, Mysuru. The IV Additional District Judge, Mysuru who decided this appeal, set aside the order passed by the Trial Court and restored the suit. Aggrieved by the judgment of the District Court this appeal has been preferred.
2. Learned counsel for the appellant argues that since the sale in favour of the appellant was on 16.11.2004, the plaintiff could not have brought a suit for partition. The Trial Court rightly rejected the application. The First Appellate Court could not have set aside the order of the Trial Court. He further argues that when there is an embargo for filing a partition suit after Section 6 of the Hindu Succession Act was amended, the suit for partition is not maintainable as the daughter does not become a coparcener. Therefore he tries to make out a case for admission.
3. On going through the judgment of the District Court, I am of the opinion that the Appellate Judge has given proper reasons for allowing the appeal before him. Whenever an application under Order 7 Rule 11 CPC is made the averments made in the plaint alone should be considered to examine whether plaint can be rejected or not. The defence taken by the defendants should not be considered. This is a well established principle of law. The appellant herein being defendant No.4 in the suit has taken up a contention that the sale in her favour was much before amendment was brought to Section 6 of the Hindu Succession Act and therefore suit for partition was not maintainable. But in the plaint it is stated that the alienation made by first defendant through his GPA Holder in favour of the fourth defendant does not bind her interest. Therefore in the facts and circumstances pleaded by the plaintiff, the Trial Court has to examine whether really plaintiff’s interest is affected by the sale or not. If according to the fourth defendant the plaintiff is not entitled to partition in view of alienation made on 16.11.2004, certainly Trial Court can decide this issue after holding trial. In these set of circumstances, I do not think that the District Court has committed an error in setting aside the order passed by the Trial Court on the application filed under Order 7 Rule 11 CPC. There is no case for admission. Appeal is dismissed.
Sd/- JUDGE Cm/-