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2021 DIGILAW 268 (TS)

Vinod Lahoti v. Viswanath Lahoti

2021-08-12

A.RAJASHEKER REDDY, SHAMEEM AKTHER

body2021
JUDGMENT : SHAMEEM AKTHER, J. 1. This appeal, under Section 96 of the Code of Civil Procedure, 1908, is filed by the appellants/plaintiffs, aggrieved by the order, dated 23.04.2021, passed in I.A. No. 953 of 2018 in O.S. No. 3 of 2016 by the learned V Additional District Judge, Kothagudem, whereby the subject Interlocutory Application filed by the respondent Nos. 1 to 9 herein/defendant Nos. 7 to 15, under Order VII Rule 11(a) of CPC seeking to reject the plaint for want of cause of action was allowed and the plaint was rejected. 2. Heard Sri K. Sai Ram Murthy, learned counsel for the appellants, Sri P. Rama Sharana Sharma, learned counsel for the respondent Nos. 1, 2, 4 to 6, 8 and 9 and perused the record. 3. In spite of service of notice on respondent Nos. 3, 7, 10 to 12, 14 and 15, there is no appearance on their behalf. Notice sent to respondent No. 13 returned un-served with postal endorsement “No such person in that address.” Hence, notice on respondent No. 13 deemed to be served. 4. The appellants/plaintiffs filed O.S. No. 3 of 2016 against the defendants on the file of the Court below seeking partition and separate possession of the suit schedule properties. The defendants filed written statement and the suit is coming up for framing of issues. At that stage, the respondent Nos. 1 to 9 herein/defendant Nos. 4. The appellants/plaintiffs filed O.S. No. 3 of 2016 against the defendants on the file of the Court below seeking partition and separate possession of the suit schedule properties. The defendants filed written statement and the suit is coming up for framing of issues. At that stage, the respondent Nos. 1 to 9 herein/defendant Nos. 7 to 15 filed the subject I.A. No. 953 of 2018 under Order VII Rule 11(a) of CPC seeking to reject the plaint, contending that the suit schedule properties are the self acquired properties of late Bansilal Lahoti; Late Bansilal Lahoti died on 10.02.2009 leaving behind eight sons and two daughters; The wife of Late Bansilal Lahoti predeceased him in the year 2003; Late Bansilal Lahoti, during his life time, bequeathed the suit schedule properties by executing a Will Deed, dated 20.05.2007; As per the said Will Deed, the father of the appellants herein (defendant No. 1), who is the class-I legal heir of late Bansilal Lahoti and who is still alive, is entitled for his share in the suit schedule properties; The appellants/plaintiffs, being the grand sons of late Bansilal Lahoti and sons of defendant No. 1, have no right to claim partition of the suit schedule properties during the lifetime of defendant No. 1, as they are not Class-I legal heirs of late Bansilal Lahoti and as such, the appellants/plaintiffs have no cause of action to file the suit for partition of the suit schedule properties. 5. The Court below, vide impugned order, dated 23.04.2021, allowed the subject I.A. and rejected the plaint holding that natural sons and daughters are placed as Class-I heirs in the Hindu Succession Act; Grandsons cannot claim partition of joint family properties, so long as their father is alive; The appellants/plaintiff Nos. 1 and 2, who are the grand sons of late Bansilal Lahoti and sons of defendant No. 1 who is still alive, cannot maintain a suit for partition of suit schedule properties, which are joint family properties; The appellants/ plaintiffs have no cause of action to file the suit for partition; and the plaint does not disclose any valid cause of action to file the suit. Aggrieved by the same, the appellants/plaintiffs filed this appeal. 6. Learned counsel for the appellants/plaintiffs would contend that the impugned order is contrary to law, weight of evidence and probabilities of the case. Aggrieved by the same, the appellants/plaintiffs filed this appeal. 6. Learned counsel for the appellants/plaintiffs would contend that the impugned order is contrary to law, weight of evidence and probabilities of the case. The Court below erred in rejecting the plaint on the ground that the there is no cause of action. There are specific recitals in Para 5 of the plaint that late Bansilal Lahoti, as a Karta of Hindu Joint family, established different businesses at different places in Yellandu and acquired some properties and also established businesses at Khammam town and the plaintiffs and defendants were discharging their respective duties as per the directions of the Karta of the family. Since the suit schedule properties are joint family properties, all the plaintiffs and defendants are entitled to share the same in the ratio mentioned in the plaint. Therefore, it cannot be said that there is no cause of action to file the suit. The Court below erroneously allowed the subject application on the ground that there is no cause of action to file the suit, which is contrary to the purport of Order VII Rule 11(a) of CPC. Further, a plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. A plaint can be rejected only when the averments in the plaint do not disclose any cause of action. Since the appellants/plaintiffs are the members of joint family, they have every right to seek partition and separate possession of the suit schedule properties. Valuable rights of the parties relating to immovable properties are involved in the subject suit. The impugned order, if sustained, would result in gross miscarriage of justice and ultimately, prayed to set aside the impugned order and allow the appeal as prayed for. 7. On the other hand, learned counsel for the respondents would submit that there is no cause of action for the appellants/plaintiffs to file the subject suit for partition and separate possession. The appellants/plaintiffs, being the grand sons of late Bansilal Lahoti and sons of defendant No. 1, cannot maintain a suit for partition so long as their father is alive. On the other hand, learned counsel for the respondents would submit that there is no cause of action for the appellants/plaintiffs to file the subject suit for partition and separate possession. The appellants/plaintiffs, being the grand sons of late Bansilal Lahoti and sons of defendant No. 1, cannot maintain a suit for partition so long as their father is alive. While scrutinizing the averments in the plaint, the Court should ascertain as to whether there is cause of action to maintain the suit or not, and where there is no cause of action, the Court has no other option except to reject the plaint. In the schedule appended to Hindu Succession Act, natural sons and natural daughters are placed as class-I legal heirs, but not grandsons or granddaughters. The appellants/plaintiffs are not class-I legal heirs of late Bansilal Lahoti and they have no right to claim partition of the suit schedule properties during the lifetime of their father, i.e. defendant No. 1. The Court below, after scrutinizing the entire plaint and after discussing various citations relied upon by both the learned counsel, rightly rejected the plaint holding that there is no valid cause of action to file the suit. There is nothing to interfere with the reasoned order of the Court below and ultimately prayed to sustain the impugned order and dismiss the appeal. 8. In view of the rival contentions, the point that arises for determination in this appeal is as follows: “Whether the impugned order, dated 23.04.2021, passed in I.A. No. 953 of 2018 in O.S. No. 3 of 2016 by the learned V Additional District Judge, Kothagudem, is legally sustainable?” POINT: 9. 8. In view of the rival contentions, the point that arises for determination in this appeal is as follows: “Whether the impugned order, dated 23.04.2021, passed in I.A. No. 953 of 2018 in O.S. No. 3 of 2016 by the learned V Additional District Judge, Kothagudem, is legally sustainable?” POINT: 9. Before proceeding further, it is appropriate to refer to Para No. 5 of the plaint, which reads as under: “That the cause of action arose on when late Bansilal as a Karta of Hindu joint family established different businesses at different places in Yellandu and when acquired the properties and when also purchased a site and established business at Khammam town and when plaintiffs and defendants as members of Hindu joint family wee discharging their respective duties as per the directions of the head of the family late Bansilal and when wife of late Bansilal predeceased him and when late Bansilal grandfather of the plaintiffs and father of the defendant Nos.1 and 7 to 15 died on 10.02.2009 leaving behind the plaintiffs and defendants as legal heirs and successors and when all the members of the joint family alienated the property at Khammam and withdrawn from the partnership business at Khammam and when the family of defendant No. 1 after the closure of the business at Khammam constituted partnership with new members and started the business independently without any involvement of the joint family members and when the defendant No. 7 acted as Karta of Hindu joint family in view of the ill health of the defendant No. 1 and when the defendant Nos. 7, 8 and 14 started acting against the interest of the joint family members to gain wrongfully without furnishing proper account and distributing the shares out of the joint family income and when plaintiffs realizing misappropriation of funds from the joint family income demanded the defendant No. 1 to affect partition and allot their share as the family has grown into several members and it has become difficult to maintain and when the defendant No. 1initially tried to affect partition, but after being carried away emotionally declined to divide the property without realizing that nobody is taking the responsibility of being accountable for the maintenance of the property and distribution of the income from the joint family property as the defendant Nos. 7, 8 and 14 are acting as per their whims and fancies and are also trying to change the entries in the Government records by creating false and fabricating documents and when the defendants are not co-operating for division of property and when the defendants are trying to change the record and alginate the record to gain wrongfully and the cause of action is continuous one.” 10. It is evident from the above extracted Para-5 of the plaint that late Bansilal Lahoti, as a Karta of Hindu Joint Family, established different businesses at different places in Yellandu. He acquired properties such as house sites etc. at different places, including Khammam town, the plaintiffs and defendants are members of Hindu Joint Family and were discharging the duties as per directions of the head of the family, i.e. Late Bansilal Lahoti. Wife of late Bansilal Lahoti predeceased him and Bansilal Lahoti passed away on 10.02.2009 leaving behind him the plaintiffs and defendants as legal heirs and successors. All the members of Hindu Joint Family alienated the property situated at Khammam and withdrew from the partnership business at Khammam. Defendant No. 7 acted as Karta of Hindu Joint Family during the illness of defendant No. 1. There is malfunctioning on the part of defendant Nos. 7, 8 and 14 and they wrongfully gained, did not render accounts and properly distributed the joint family income. Having noticed the same, the appellants/plaintiffs demanded defendant No. 1 to affect partition and allot respective shares. Defendant No. 1 was emotionally carried away and declined to divide the property. Defendant Nos. 7, 8 and 14 are trying to change the entries in the Government records by creating false and fabricated documents and not cooperating for division of property and trying to alienate the same and gain wrongfully. The cause of action to file the suit is continuous. 11. The plaintiffs and defendants are claiming to be members of a Hindu Joint Family and the suit schedule properties are their joint family properties. It has originated from the joint family income and other joint properties. Every member of Hindu Joint Family, including plaintiffs and defendants, have shares in the joint family properties. In view of these recitals, it is appropriate to extract Order VII Rule 11 of CPC, which reads as follows: 11. It has originated from the joint family income and other joint properties. Every member of Hindu Joint Family, including plaintiffs and defendants, have shares in the joint family properties. In view of these recitals, it is appropriate to extract Order VII Rule 11 of CPC, which reads as follows: 11. Rejection of plaint - The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action. (b) xxx (c) xxx (d) xxx (e) xxx (f) xxx 12. It is apt to state that while determining an application filed under Order VII Rule 11(a) CPC, the Court is required to examine the plaint as a whole and take the averments made therein into consideration. The Court shall not look into the averments of written statement and other documents filed in support of the case of defendants. On a reading of the plaint in its entirety, if it discloses cause of action, then the plaint cannot be rejected. In an application filed under Order VII Rule 11(a) CPC, the Court must not selectively pickup the averments in the plaint and read them in isolation. Instead, a meaningful reading of the entire plaint must be conducted by the Court to satisfy itself, as to whether the averments made therein would disclose cause of action to proceed with the case. Further, a plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court ought not come to a conclusion that there is no cause of action, without trial being conducted. As long as the claim discloses some cause of action or if it raises some questions which are fit to be decided at trial, it is not correct to reject the plaint. Where the plaint, on the face of it, discloses ‘no cause of action’ it is liable to be rejected. Here, the circumstances are different. 13. In the instant case, when the averments in Para-5 of the plaint as well as other averments are read together, it discloses cause of action in favour of appellants/plaintiffs to institute the present suit. The contentions raised in the written statement and other contentions raised during the course of hearing of the subject interlocutory application are required to be examined after conclusion of trial. The contentions raised in the written statement and other contentions raised during the course of hearing of the subject interlocutory application are required to be examined after conclusion of trial. Under these circumstances, the Court below erroneously concluded that the appellants/plaintiffs have no cause of action to file the suit. The impugned order is not in consonance with the purport of Order VII Rule 11(a) of CPC. For the foregoing reasons, the impugned order is legally unsustainable and is liable to be set aside. 14. In view of the above discussion, the appeal is allowed by setting aside the impugned order, dated 23.04.2021, passed in I.A. No. 953 of 2018 in O.S. No. 3 of 2016, by the learned V Additional District Judge, Kothagudem. O.S. No. 3 of 2016 is restored to the file of Court below and the Court below is directed to frame issues and proceed with the trial of the case, in accordance with law. 15. Miscellaneous Petitions, if any, pending in this appeal shall stand closed. There shall be no order as to costs.