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2001 DIGILAW 750 (KAR)

YESHODA v. SINDHURA

2001-09-28

D.V.SHYLENDRA KUMAR

body2001
D. V SHYLENDRA KUMAR, J. ( 1 ) THIS civil revision petition at the instance of the defendants in Original suit No. 262 of 2000 is directed against the order dated 22-2-2000 passed on Interim Application No. 6 on the file of the Principal Civil judge (Senior Division), Mangalore, whereby the learned Trial Judge rejected the said application filed under Order 7, Rule 11 of the CPC and declined the prayer of the petitioners-defendants. ( 2 ) THE brief facts are that respondents 1 and 2 were minors and they were represented by their guardian mother and filed the suit against the petitioners-defendants and the third respondent herein who is their father and the plaintiffs-respondents are seeking for declaration that they are entitled to l/6th share in the suit schedule properties, for rendition of accounts and for granting decree by delivery of possession of their share in the suit schedule properties. ( 3 ) THE case of the plaintiffs-respondents is that the properties come out of the ancestral nucleus with improvement and enlarged by their grandfather late V. Vasudeva Rao and the said Vasudeva Rao having died in the year 1977 and who was the Yejman and Kartha of the family and who had constituted joint family along with his brother one V. Narayana Rao being the sons of late Venkatachalayya and a partition between Vasudeva Rao and Narayana Rao effected in the year 1976. Properties being joint family properties are required to be shared among all the members of the family and the plaintiffs-respondents having equal coparcenary rights in view of the provisions under Section 6-A of the Hindu Succession Act as amended by Karnataka Amendment in 1994, they are entitled for their share in the joint family properties and they have sought for the same. The averment in the plaint is that the defendants taking advantage of the docile nature of their father, have been enjoying the entire properties and managing the entire properties and the plaintiffs-respondents have been deprived of their legitimate share in the joint family properties. The averment in the plaint is that the defendants taking advantage of the docile nature of their father, have been enjoying the entire properties and managing the entire properties and the plaintiffs-respondents have been deprived of their legitimate share in the joint family properties. The other plaint averments are that the joint family properties were being mismanaged particularly a restaurant which was being run by the grandfather was being handed over by the defendants-petitioners to others and to the detriment of the plaintiffs-respondents and as such the plaintiffs were compelled to institute the suit through their mother and natural guardian even during the minority itself. ( 4 ) THE plaint indicates that a legal notice had been issued on 19-5-2000 calling upon the defendants to make over the legitimate share of the plaintiffs and also the income of the plaint schedule property. The defendants sent a reply raising false and frivolous contentions. When the demand for legitimate share in the joint family properties was denied by the defendants, such denial gave rise to the cause of action for filing the suit. ( 5 ) THE defendants were served with the notice. It appears that they have entered appearance and made an application in Interim Application No. 6 under Order 7, Rule 11 of the CPC praying for rejection of the plaint on the premise that it does not disclose any cause of action. ( 6 ) THE learned Trial Judge took up this application for orders and on finding that the plaint reveals the cause of action and a tenable one, was not inclined to entertain the application under Order 7, Rule 11 of the CPC. The other contention of the petitioners-defendants is that the suit is not maintainable as the plaintiffs who are minors cannot be represented through their mother-natural guardian even during the lifetime of their father and as such the suit should be dismissed at the threshold and further that in view of the provisions of Section 6-A of the Hindu succession Act as amended by Karnataka Amendment, the plaintiffs do not get any right to file a suit of the present nature during the lifetime of their father. On this ground also, it was contended that the suit is liable to be dismissed and the plaint required to be rejected. On this ground also, it was contended that the suit is liable to be dismissed and the plaint required to be rejected. ( 7 ) THE learned Trial Judge negatived these contentions also on finding that there is no impediment for the minor plaintiffs being represented by their next friend mother who is also a natural guardian and the question was also answered regarding the maintainability of the suit, in view of the provisions of Section 6-A of the Hindu Succession Act as amended by Karnataka Amendment, required to be considered during the trial of the suit and on leading evidence, rejected the application under Order 7, Rule 11 of the CPC. The defendants being aggrieved by the same are before this Court. ( 8 ) SRI J. Chandrashekharaiah, learned Counsel appearing for the petitioners reiterated the same by submitting that the suit is not maintainable. The suit must be characterised as one vexatious and not maintainable and mainly intended to harass the defendants, that it does not disclose any cause of action and having regard to the provisions of Section 6-A of the Hindu Succession Act as amended by Karnataka Amendment, the plaintiff daughters could not have maintained the suit as they claim through their father and particularly in view of the earlier partition in the family during the year 99 at which time the father had been given a share in the joint family properties. It is accordingly submitted that the learned Trial Judge was in error in rejecting the application and on the other hand, the plaint should have been rejected for these reasons. ( 9 ) LEARNED Counsel also relied upon the decision of the Apex Court in the case of T. Arivandandam v T. V. Satyapal and Another , to support his submission regarding the scope of the application under Order 7, rule 11 of the CPC. In the said decision, the Apex Court had gone into the provision under Order 7, Rule 11 of the CPC and held that the object of this provision is to ensure that suits which are manifestly vexatious and merit less, in the sense which do riot disclose a clear right to sue not indicating the cause of action should not be encouraged and the provision should be applied and such a plaint should be rejected. The Apex court has observed that if the Trial Court is satisfied that the suit is of the nature indicated above, it should take deterrent action apart from rejecting the suit under Order 7, Rule 11 of the CPC. Ultimately, it depends upon the pleadings in the plaint and as to whether the said pleadings indicate any merit or of tenable nature of the claim to be viewed in the context of the relief prayed for by the plaintiffs The plaint on the face of it also indicates that there is sufficient cause for the plaintiffs to approach the Court and if it does not indicate so, obviously, the provisions under Order 7, Rule ll (a) are clearly attracted. In the instant case, the Trial Judge on the other hand was satisfied that the plaint contains sufficient pleadings to indicate the nature of right that is sought to be agitated by the plaintiffs and the plaint also indicates the cause of action. ( 10 ) IN these circumstances, the learned Trial Judge declined the request for allowing the application under Order 7, Rule ll (a ). With regard to other submission that the plaint should be rejected under the provisions under Order 7, Rule 7 (d) on the premise that it is barred by any law, learned Counsel for the petitioners is unable to substantiate the same with regard to any statutory provisions. The submission is that the minor children through their father could not claim any right during the lifetime particularly, their father having got a share in the earlier partition of the joint family properties. The fact situation is that the kartha of the joint family namely late Vasudeva Rao died in the year 1977 and the defendants have pleaded that there was a partition later during the year 1999. Even, at the time of partition as pleaded by defendants, the plaintiffs were members of the joint family by virtue of provisions of Section 6-A of the Hindu Succession Act as amended by karnataka Amendment. If that is so, they have a right to agitate in respect of their share in the joint family properties. On the other hand, there is no statutory bar for maintenance of such a suit as is sought to be submitted by the learned Counsel. If that is so, they have a right to agitate in respect of their share in the joint family properties. On the other hand, there is no statutory bar for maintenance of such a suit as is sought to be submitted by the learned Counsel. Accordingly, the view of the Trial judge that this is a matter which has to be agitated at a later stage and during the trial, cannot be said as one either suffering from any material irregularity or causing injustice. ( 11 ) THE next submission of the learned Counsel for the petitioners is that having regard to the provisions of the Hindu Minority and Guardianship Act, particularly Sections 17 and 19 question of mother acting as a guardian during the lifetime of father does not arise and more so when no Court has appointed the mother as a guardian as in the present case. ( 12 ) LEARNED Counsel for the petitioners has relied upon a decision of the Division Bench of this Court in the case of Kamalamma v Lakshminarayana Rao1, in support of the said submission. The dispute arose in that case in the context of whether the mother can be appointed as a guardian under the provisions of the Act during the lifetime of the father and when no allegations are made as against the father who is legal guardian of the minor children. In that context, in the facts and circumstances of the case, it was held that the mother is not a fit person to act as a guardian of the minor children. Particularly, in the context of the dispute as to whether mother or father should be appointed as a guardian of the minor. In fact, there is no dispute on this aspect inasmuch as the father who is a guardian has also been impleaded as a defendant in the suit. The dispute is not on the question as to which of the two parents can represent the interest of minors. At any rate in a situation of this nature where the rights of minor children is pleaded to be affected, the mother who is also a natural guardian is definitely entitled to maintain a suit on behalf of the minor children to protect the interest of the minor children. At any rate in a situation of this nature where the rights of minor children is pleaded to be affected, the mother who is also a natural guardian is definitely entitled to maintain a suit on behalf of the minor children to protect the interest of the minor children. It is not a contest between the parents as to who should be appointed as the guardian of the minor children on the question of protecting the interest of the minor children. Howsoever, protecting their interest can neither be discouraged nor be faulted on technicalities as the Court is the ultimate guardian of all minor children and if the Court finds that in the interest of minor children the action taken by their mother is justified, then there is no question of finding fault with such action and at any rate, it cannot be said that the mother as next friend lacked competency to represent her minor children to maintain the suit on their behalf. ( 13 ) IN this view of the matter, I am of the opinion that the decision cited by the learned Counsel for the petitioners does not assist the petitioners, in the context of the present petition and having regard to the dispute that has been raised, the defendants were not entitled for the relief claimed for rejection of plaint by filing such application. ( 14 ) IN any view of the matter, I do not find any illegality or material irregularity in the order passed by the Trial Judge in rejecting the application under Order 7, Rule 11 and on the other hand, I am of the opinion that it is just and proper. Hence, I find no merit in the revision petition. Accordingly, the petition is rejected. ( 15 ) THE observations made in the course of the order is for the limited purpose of examining the merits of the revision petition and to clarify the legal position and the Trial Judge shall proceed with the suit without being influenced by any such observations made by this Court. No costs. --- *** --- .