IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR Regular First Appeal No.1002 of 2016 (PAR) BETWEEN :
1. SMT. SHANTHAMMA AGED ABOUT 50 YEARS, D/O. LATE THIMMAREDDY, & W/O. VENKATASWAMY REDDY, R/O. MULLUR VILLAGE, KARMULARAM POST, MAHADEVAPURA, BENGALURU EAST TALUK BENGALURU DISTRICT-560 048.
2. SMT.CHOWDAMMA AGED ABOUT 56 YEARS, D/O. LATE THIMMAREDDY, & W/O. MUNISWAMYREDDY, R/O. DOMMASANDRA VILLAGE, SARJAPURA HOBLI-562 125 ANEKAL TALUK, BENGALURU DISTRICT.
3. SMT.LAKSHMIAMMA AGED ABOUT 53 YEARS, D/O. LATE THIMMAREDDY, & W/O. CHANDRAREDDY, R/O. KOTIGANAHALLI VILLAGE, HANDENAHALLI POST, SARJAPURA HOBLI, ANEKAL TALUK-562 125 BENGALURU DISTRICT.
4. SMT. T. ANURADHA AGED ABOUT 47 YEARS, D/O. LATE THIMMAREDDY, & W/O. KESHAVAREDDY, R/O. CHOKKASANDRA VILLAGE, HUSKUR POST, SARJAPURA HOBLI, ANEKAL TALUK-562 125 BENGALURU DISTRICT.
(BY SRI K. K. VASANTH, ADVOCATE) AND :
1. SRI T. SHIVARAMAREDDY AGED ABOUT 62 YEARS, S/O. LATE THIMMAREDDY, R/O. NARAYANAGHATTA VILLAGE, SARJAPURA HOBLI, ANEKAL, BENGALURU DISTRICT CODE NO.562 125.
2. SRI N. S. MANJUNATHA AGED ABOUT 31 YEARS S/O. T. SHIVARAMAREDDY, R/O. NARAYANAGHATTA VILLAGE, SARJAPURA HOBLI, ANEKAL, BENGALURU DISTRICT-562 125.
3. SMT. N. S. SOWMYA AGED ABOUT 25 YEARS D/O. T. SHIVARAMAREDDY, R/O. NARAYANAGHATTA VILLAGE, SARJAPURA HOBLI, ANEKAL, BENGALURU DISTRICT-562 125.
4. SMT. SHILPASHREE V., AGED ABOUT 32 YEARS D/O. N. VISHWANATH, R/AT NO.669, 14TH MAIN, 14TH CROSS, J. P. NAGAR, II PHASE, BENGALURU-560 078.
5. SRI V. GIRIDHARA BABU AGED ABOUT 59 YEARS S/O. LATE RAMACHANDRA NAIDU, ... APPELLANTS R/AT NO.39,SILVER OAK STREET, PUTTENAHALLI EAST, 7TH PHASE, J.P NAGARA, BENGALURU-560 078.
6. M/S. NAMBIAR BUILDERS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 2ND FLOOR, P R BUSINESS CENTRE, ABOVE CROMA, OUTER RING ROAD, KADUBISANAHALLI VILLAGE, MARTHAHALLI POST, BENGALURU-560 037.
7. M/S. PEARL PROPERTIES A REGISTERED PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 24/3, NEAR RING ROAD, MARTHAHALLI, DODDANEKKUNDI, BENGALURU EAST TALUK, BENGALURU DISTRICT-560 037, REPRESENTED BY ITS PARTNERS.
8. SRI. ASHOK KUMAR AGED ABOUT 51 YEARS, S/O. P. SUDARSHAN RAO, R/AT NO.1190, SRT, V.N. COLONY, HYDERABAD-500 001, ANDHRA PRADESH.
9. SRI. V. SRINIVASA REDDY AGED ABOUT 50 YEARS, S/O. V. YADAGIRI REDDY, R/AT NO. 51, 1ST CRESCENT ROAD, SAINIKPURI, SECUNDARABAD-500 007, ANDHRA PRADESH.
10. SRI. B. BALAKRISHNA NAIDU AGED ABOUT 60 YEARS, S/O. M. RAMA NAIDU, R/AT NO.12/17, BALAKRISHNA RESIDENCY, 24TH MAIN, 7TH PHASE, J.P. NAGAR, BENGALURU-560 078.
11. M/S. BENNET PROPERTY COMPANY LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS CORPORATE OFFICE AT NO. 110/37 & 258, SOHTAIRE, MARTHAHALLI OUTER RING ROAD, KRISHNARAJAPURA HOBLI, BENGALURU-560 037.
... RESPONDENTS (BY SRI N. SHIVAKUMAR, ADVOCATE FOR RESPONDENT NO.6; SRI S. MANJUNATHA, ADVOCATE FOR RESPONDENT NO.11;
RESPONDENT NOS.1, 2, 3, 5, 9 AND 10 – NOTICE SERVED AND UNREPRESENTED;
RESPONDENT NOS.4, 7 AND 8 – NOTICE DISPENSED WITH VIDE ORDER DATED 04.01.2018) THIS R.F.A. IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 17.03.2016 PASSED ON I.A. NO.10 IN O.S. NO.846/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., ANEKAL, ALLOWING THE I.A. NO.10 FILED UNDER ORDER VII RULE 11(A) AND (D) OF C.P.C.
THIS R.F.A. COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed to consider I.A. No.1 of 2019 filed by the appellants, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is directed against the order dated 17.03.2016 passed by the Court of Senior Civil Judge and J.M.F.C. at Anekal, in O.S. No.846 of 2014. The said application was filed by defendant No.6 in the suit under Order VII Rule 11(a) and (d) of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’, for the sake of brevity), seeking rejection of the plaint in respect of ‘B’ schedule property only. By the impugned order, the said application has been allowed and the plaint has been rejected in respect of the ‘B’ schedule property only. Being aggrieved, the plaintiffs have preferred this appeal.
3. We have heard learned counsel for the appellants and learned counsel for respondent No.6 and 11. Respondent Nos.1, 2, 3, 5, 9 and 10 are served and unrepresented. Notice to respondent Nos.4, 7 and 8 is dispensed with vide order dated 04.01.2018.
4. We have perused the material on record.
5. Learned counsel for the appellants in the suit drew our attention to the amended plaint filed in O.S. No.846 of 2014, a copy of which is annexed to the memorandum of appeal, to contend that the said suit has been filed seeking the relief of partition and separate possession of the suit schedule properties to an extent of 4/5th share together and for mesne profits and other reliefs. That the suit schedule properties comprises of ‘A to D’ Schedule properties. That on the application filed by defendant No.6 in the suit, the trial Court has rejected the plaint only with regard to ‘B’ Schedule properties, while the suit is continued vis-à-vis the other properties. He submitted that there cannot be a partial rejection of the plaint vis-à-vis certain properties only, in the instant case ‘B’ Schedule property, while continuing the suit with regard to other suit properties. He contended that the plaintiffs have filed the suit seeking the relief of partition and separate possession and have incorporated all the properties which are the joint properties in the plaint. ‘B’ Schedule property may have been alienated in the year 2004, but the said alienation has no immunity. The same would have to be taken into consideration at the time of granting reliefs to the parties vis-à-vis all the suit schedule properties which have been incorporated in ‘A to D’ Schedule properties. Therefore, the trial Court was not right in rejecting the plaint partially insofar as ‘B’ Schedule properties only is concerned and hence the impugned order may be set aside and the appeal may be allowed. In support of his submission, he placed reliance on a recent dictum of the Hon’ble Supreme Court in the case of Sejal Glass Limited v. Navilan Merchants Private Limited reported in (2018)11 SCC 780 (Sejal Glass Limited).
6. Per contra, learned counsel for respondent No.6 / defendant No.6 in the suit, who had filed the application under Order VII Rule 11(a) and (d) of C.P.C. supported the impugned order and contended that ‘B’ Schedule property was alienated by defendant Nos.1 to 3 to defendant No.4, who in turn sold it to defendant No.7 and thereafter to defendant No.6 and that the alienation had taken place on 19.01.2004. That having regard to the amended Section 6 of The Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’, for the sake of brevity), the plaintiffs cannot seek any relief inspite of any alienation made prior to 20.12.2004. That in the instant case, the alienation was made on 19.01.2004. Therefore, the trial Court rightly rejected the plaint vis-à-vis ‘B’ Schedule property. He contended that there is no merit in the appeal and the same may be dismissed.
7. Learned counsel for respondent No.6 also brought to our notice the fact that subsequently on 16.08.2017 the suit itself has been dismissed for non- prosecution, and therefore, no purpose would be served in considering this appeal on merits as there is no pending suit and hence the appeal may be dismissed in limine.
8. Having heard learned counsel for the respective parties, the following points would arise for our consideration :
1. Whether the trial Court was justified in rejecting the plaint filed by the appellants-plaintiffs vis-à-vis ‘B’ Schedule property only?
2. What Order?
9. It is not in dispute that the appellants- plaintiffs had filed O.S. No.846 of 2014 against their brother and other purchasers seeking the relief of partition and separate possession of their 4/5th share together in respect of ‘A to D’ Schedule properties.
10. It is the case of respondent No.6 that ‘B’ Schedule property has ultimately been purchased by him. That the said alienation took place on 19.01.2004 and in view of the proviso to amended Section 6 of the Act, nothing contained in sub-section (1) shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20th day of December, 2004. The said proviso has been inserted by way of an amendment to sub-section (1) of Section 6 of the Act, in the context of equal rights to a daughter of Mitakshara coparcener subject to certain terms and conditions. Merely because alienation of ‘B’ Schedule property has taken place prior to 20.12.2004 does not imply that the same could not have been incorporated as a part of the plaint schedule and neither could the plaint be rejected vis-à-vis ‘B’ Schedule property only.
11. It is noted that the suit is one for partition and separate possession of the properties which are shown in ‘A to D’ Schedules. Whether the ‘B’ Schedule is available for partition or whether the alienation was justified or not is a matter to be considered after the trial in the suit. Further the right, title and interest of the plaintiffs vis-à-vis the suit schedule properties is also a matter to be considered after the conclusion of the trial. The share, which the plaintiffs, being the daughters are entitled to under amended Section 6 of the Act is also to be considered on conclusion of the trial. Whether the amended Section 6 of the Act would apply while considering granting a share to the plaintiffs, who are the daughters equal to that of a son or whether they are entitled to only a share in the father’s share pursuant to a notional partition is also to be determined after the conclusion of the trial.
12. More significantly, a plaint cannot be rejected partially vis-à-vis certain properties or certain defendants while continuing the suit in respect of other properties and other defendants particularly when a suit is for partition and separate possession of the suit schedule properties. Therefore, the trial Court was not right in rejecting the plaint vis-à-vis ‘B’ Schedule property only while continuing the suit in respect of the other Schedules, namely, ‘A, C and D’ Schedules in the instant case, at the instance of defendant No.6. In this regard we place reliance on a judgment of the Hon’ble Supreme Court cited by the appellants’ counsel in Sejal Glass Limited, wherein it has been categorically recorded that there cannot be a partial rejection of a plaint.
13. In the circumstances, the impugned order is set aside and the appeal is allowed.
14. It is also clarified that if the suit itself has been dismissed for non-prosecution, and in the event the said order is recalled and the suit is restored on the file of the trial Court, then the trial Court shall take into consideration the judgment passed in this appeal and note that the rejection of the plaint vis-à-vis ‘B’ Schedule property is set aside, and therefore, the trial Court would have to consider the reliefs claimed by the plaintiffs vis-à-vis ‘B’ Schedule property also in accordance with law.
15. Appeal is allowed and disposed in the aforesaid terms.
Parties to bear their respective costs.
In view of the disposal of the appeal, I.A. No.1 of 2019 stands disposed.
Sd/- JUDGE Sd/- JUDGE hnm