IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.34262/2017(GM-CPC) BETWEEN:
M. NAGENDRA, S/O LATE MAHADEVAPPA, AGED ABOUT 52 YEARS, R/AT CHENNABASAVAIAHNAHUNDI VILLAGE, MARADIPURA DAKHALE, TALAKADU HOBLI, T.NARASIPURA TALUK, MYSORE DISTRICT.
... PETITIONER (BY SRI GIRISHA N. R., ADVOCATE) AND:
1. NANJAMMA, D/O LATE MARINAYAKA, AGED ABOUT 70 YEARS, 2. ARASAMMA, D/O LATE MARINAYAKA, AGED ABOUT 67 YEARS, 3. MADAMMA, D/O LATE MARINAYAKA, AGED ABOUT 63 YEARS, 4. MALLAMMA D/O LATE MARINAYAKA, SINCE DEAD BY HER LRS a) SMT.MAHADEVAMMA, W/O SHIVANNA, AGED ABOUT 42 YEARS, R/AT D.NO.15, 4TH CROS, S.V.G. NAGAR, MOODALAPALYA, BANGALORE-72.
b) RAJANNA, AGED ABOUT 40 YEARS, S/O LATE BASAVARAJ, c) SMT.SUNDRAMMA W/O MADESHA, AGED ABOUT 37 YEARS, d) MAHADEVAMMA, C/O MADEHA, AGED ABOUT 34 YEARS, e) BASAVARAJU S/O LATE MALLAMMA AND LATE BASAVARAJU RESPONDENTS 2 TO 4(b) TO (e) ARE R/AT HOSAPURA VILLAGE, T.NARASIPURA TALUK, MYSORE DISTRICT.
5. NAGAMMA, D/O LATE MARINAYAKA, AGED ABOUT 62 YEARS, 6. SAKAMMA, D/O LATE MARINAYAKA, AGED ABOUT 60 YEARS 7. RAJAMMA, W/O KRISHNA NAYAKA,, AGED ABOUT 48 YEARS, 8. UMAVATHI D/O KRISHNA NAYAKA, AGED ABOUT 32 YEARS, 9. GAYATHRI, D/O KRISHNA NAYAKA, AGED ABOUT 30 YEARS, 10. SHIVAKUMARA, S/O KRISHNAYNAYAKA, AGED ABOUT 25 YEARS, 11. SHOBHA D/O KRISHNA NAYAKA, AGED ABOUT 20 YEARS, 12. LOKESHA, S/O KRISHNA NAYAKA, AGED ABOUT 15 YEARS, BEING MINOR, REPRESENTED BY NATURAL GUARDIAN MOTHER RESPONDENT NO.7 PLAINTIFF NO.1 AND 5 TO 12 ARE R/AT MARADIPURA VILLAGE, TALAKADU HOBLI, T.NARASIPURA TALUK, MYSORE DISTRICT-570060.
... RESPONDENTS …… THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER ANNEXURE-A DATED 24.6.2017 PASSED BY THE SENIOR CIVIL JUDGE T.NARASIPURA AND ON I.A.NO.7 IN O.S.NO.2/2015 AND ALLOW THE I.A.NO.7 AND REJECT THE SUIT IN O.S.NO.2/2015 AS PRAYED FOR. .
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The second defendant filed the present writ petition against the order dated 24.06.2017 made in O.S.No.2/2015, on the file of the Senior Civil Judge, Tirumakudal Narasipura, rejecting I.A.No.7 filed by the second defendant under Order VII Rule 11(d) r/w Section 151 of the Code of Civil Procedure.
2. The plaintiffs filed suit for partition and separate possession of their 6/7th share in the suit schedule properties by metes and bounds, by holding the registered sale deed dated 05.09.2003 executed in favour of the second defendant in respect of item No.1 as not binding on the plaintiffs to the extent of their undivided share, contending that the suit schedule properties are the joint family properties of plaintiffs and defendants and there was no partition in the joint family and therefore they are entitled to the share etc.
3. The defendant No.2 filed written statement, denied the entire plaint averments and contended that the very suit filed by the plaintiffs is not maintainable and the amendment to Hindu Succession Act which came into force from 09.09.2005 shall not have any effect in so far as any dispossession or alienation including any partition or testamentary dispossession which had taken place prior to 20th December 2004, and sought for dismissal of the suit.
4. When the matter was posted for evidence, the second defendant filed an application under Order VII Rule 11(d) of Code of Civil Procedure to reject the plaint, reiterating the averments made in the written statement. The same was resisted by the plaintiffs by filing objections.
5. The Trial Court, considering the application and the objections, by the impugned order dated 24.06.2017 rejected the application filed by the second defendant under Order VII Rule 11(d) of Code of Civil Procedure. Hence the present writ petition is filed.
6. I have heard the learned counsel for the petitioner.
7. Sri N.R.Girisha, learned counsel for the petitioner/ second defendant contended that the very suit filed by the plaintiffs is not maintainable and the Trial Court ought to have rejected the plaint in view of the amended provision of Section 6 of the Hindu Succession Act and the plaintiffs are not entitled for partition of the suit schedule properties. He further contended that the father of plaintiffs 1 to 6 died prior to 2005 and therefore, suit of the plaintiffs is not maintainable. The 6/7th share claimed in the property itself is barred and therefore, the Trial Court ought to have allowed the application filed by the second defendant under Order VII Rule 11(d) of the Code of Civil Procedure. Therefore, he sought to allow the writ petition.
8. Having heard the learned counsel for the petitioner, it is not in dispute that the respondents who are plaintiffs before the Trial Court filed suit for partition and separate possession contending that the suit schedule properties are the joint family properties of plaintiffs and defendants and there was no partition in the family and they are entitled to 6/7th share in the plaint schedule properties by metes and bounds by holding the registered sale deed dated 05.09.2003 executed in favour of the second defendant in respect of item No.1 of the suit schedule property is not binding on the plaintiffs to the extent of their undivided share. The same was disputed by the second defendant by filing written statement contending that in view of the amended Section 6A of the Hindu Succession Act, the very claim made by the plaintiffs cannot be considered since the item No.1 of the plaint schedule was alienated prior to 20.12.2004.
9. Whether the father of the plaintiffs died prior to the date of amendment to the Hindu Succession Act came into force, or whether the plaintiffs are entitled to their share has to be adjudicated after a full-fledged trial between the parties. A plain reading of the provisions of Order VII Rule 11(d) makes it clear that the plaint can be rejected where the suit appears from the statement in the plaint to be barred by any law. Therefore, plaint cannot be rejected on the basis of the averments made in the written statement. The petitioner is not able to point out from the averments in the plaint as to how the plaint is barred by any law. The Hon’ble Supreme Court, in the case of Sajjan Sikaria and others vs. Shakuntala Devi Mishra and others reported in (2005)13 SCC 687 held that the plaint can be rejected only on the basis of plaint averments and not on the basis of the averments made in the written statement or the averments made in the application filed by the defendants.
10. The Trial Court, considering the entire material on record, recorded a specific finding that, ‘it is not in dispute that the plaintiff Nos.1 to 6 and defendant No.1 are the children of late Marinayaka and Siddamma. The plaintiff No.7 is the wife and plaintiff Nos.8 to 12 are the children of first defendant. The specific case of the plaintiffs is that the suit schedule properties are ancestral and joint family properties of plaintiffs and defendants and there was no partition of the suit schedule properties. As such, they are entitled for equal share in the suit schedule properties. The first defendant for himself and also on behalf of his minor sons who are plaintiff Nos.10 and 12 herein has sold suit item No.1 in favour of the second defendant under registered sale deed dated 05.09.2003. It is the specific case of the second defendant that as per proviso appended to amended Section 6A of Hindu Succession Act, 2005, the plaintiffs being the daughters of coparcener are not entitled to claim any share in the suit item No.1 property as it was already alienated prior to 20th December 2004. The plaintiffs 1 to 6 are daughters of late Marinayaka. It is prima-facie evident from the plaint averments that suit item No.1 is ancestral joint family property of plaintiffs and defendant No.1. Suit item No.1 is already sold prior to 20th December 2004 by the first defendant and his two minor sons in favour of second defendant under registered sale deed dated 05.09.2003. Therefore, it may be true that the plaintiff Nos.1 to 6 may not be entitled to claim any share in the suit item No.1. But, in the case on hand, the plaintiff Nos.10 and 12 who are sons of first defendant are challenging the alienation made in favour of first defendant on the ground of legal necessities. According to them, the alienation made in favour of second defendant was not for the benefit of the family and the second defendant with an oblique motive to make wrongful gain has falsely got sale deed in his favour by making use of first defendant weakness who was addicted to bad habits’.
11. Therefore, the Trial Court was of the opinion that the plaint cannot be rejected as plaintiffs 10 and 12 are challenging the alienation made in favour of second defendant on the ground of legal necessities and the said question has to be determined on adjudication and accordingly, rejected the application.
12. The impugned order passed by the Trial Court is based on the pleadings on record and the same is in accordance with law. The petitioner/ second defendant has not made out any ground to interfere with the impugned order passed by the Trial Court, in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/-
JUDGE kcm