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2021 DIGILAW 619 (KAR)

Mallamma v. Mallegowda

2021-05-31

ALOK ARADHE, HEMANT CHANDANGOUDAR

body2021
JUDGMENT : Alok Aradhe, J. 1. This appeal under Section 96 of the Code of Civil Procedure (hereinafter referred to as 'the Code' for short) has been filed against the Order dated 03.01.2013 passed by the Trial Court by which suit filed by the appellants seeking the relief of partition and separate possession has been dismissed in exercise of powers under Order 7 Rule 11(d) of the Code. 2. The subject matter of the appeal pertains to an agricultural land measuring 2 acres and 30 guntas situate at Mydanahalli Village, Yelawala Hobli, Mysore Taluk. The aforesaid land was recorded in the revenue records in the name of defendants 1 to 3. The defendants 1 to 3 by a registered sale deed dated 08.07.1996 sold the aforesaid land to defendant No. 4 for a consideration of Rs. 2,75,000/-. The sale deed contains a recital as to delivery of possession. Thereafter, the name of respondent No. 1 was mutated in the revenue records. 3. On 05.11.2011, the plaintiffs/appellants who are children of defendant Nos. 1 to 3 viz., the vendors of defendant No. 4 filed a suit seeking the relief of partition and separate possession inter alia on the ground that plaintiffs and defendants 1 to 3 constitute a Joint Hindu Undivided Family (HUF). It was pleaded that late Javeregowda who was the common ancestor of plaintiffs and defendants 1 to 3, was the owner of land measuring 2 acres and 30 guntas situate at Mydanahalli Village, Yelawala Hobli, Mysore Taluk. On death of Javeregowda, the aforesaid land devolved on defendants 1 to 3 by survivorship. It was further pleaded that plaintiffs being the children of defendants 1 to 3 have got undivided right, title and interest in the aforesaid property and no partition or division of the land in question has taken place amongst the plaintiffs and the defendants 1 to 3. It was also pleaded that for couple of months preceding filing of the suit, defendant No. 4 is trying to interfere with the possession of the plaintiff on the ground that he has purchased the land in question. It was averred that cause of action for filing of the suit accrued on 05.11.2011 i.e., the date on which the plaintiffs demanded partition. Accordingly, the relief of partition and separate possession in respect of 5/18th share of plaintiffs as well as 6/21st shares of plaintiffs 6 to 17 was sought. It was averred that cause of action for filing of the suit accrued on 05.11.2011 i.e., the date on which the plaintiffs demanded partition. Accordingly, the relief of partition and separate possession in respect of 5/18th share of plaintiffs as well as 6/21st shares of plaintiffs 6 to 17 was sought. 4. The defendant No. 4 filed an application for rejection of the plaint under Order 7 Rule 11 (d) of the Code inter alia on the ground that he had purchased the land in question by a registered sale deed dated 08.07.1996 prior to advent of Hindu Succession (Amendment) Act, 2005, which came into force with effect from 09.09.2005. It was pleaded that daughters of a coparcener viz., plaintiffs 1, 2 and 3, 5 to 7, 10, 11 to 15 and 17 have no locus standi to file the suit as they are not entitled to challenge the validity of the sale deed executed prior to 09.08.2005. It was averred that the suit challenging the validity of alienation made by Karta of the family has to be filed within 12 years from the date of delivery of possession of property to the purchaser and therefore, the suit is barred by limitation. It was also averred that some of the plaintiffs were minor on the date of execution of the sale deed and on attaining majority, have not challenged the sale deed within a period of three years. It was also pleaded that plaintiffs 16 and 17(b) were not even born on the date of alienation of the land in question. It was pleaded that the suit is barred under the law as well as by law of limitation and the same was liable to be dismissed The plaintiffs filed an objection statement to the aforesaid application and asserted that plaintiffs are in possession of the land in question and prayed for dismissal of the application. 5. The Trial Court by an Order dated 03.01.2013 by taking into account proviso to Section 6 of the Hindu Succession Act as amended with effect from 09.09.2005 inter alia held that daughters of a coparcener have no locus to question the alienation which was made by defendant Nos. 1 to 3 on 08.07.1996. 5. The Trial Court by an Order dated 03.01.2013 by taking into account proviso to Section 6 of the Hindu Succession Act as amended with effect from 09.09.2005 inter alia held that daughters of a coparcener have no locus to question the alienation which was made by defendant Nos. 1 to 3 on 08.07.1996. It was further held that suit by the plaintiffs is not maintainable in view of statutory bar contained under Section 6 of the Hindu Succession Act as amended with effect from 09.09.2005. It was also held that suit has neither been filed within a period of 12 years from the date of execution of the sale deed nor the same has been filed within a period of 3 years from the date of attaining of majority by the minor plaintiffs. It was therefore, held that suit is barred by limitation also. Accordingly, the application filed by defendant No. 4 was allowed and the plaint was rejected. Out of 17 plaintiffs, 11 plaintiffs alone have preferred the appeal. The remaining 6 plaintiffs have accepted the order of dismissal of the suit. In the aforesaid factual background, this appeal has been filed. 6. Learned Counsel for the appellants submitted that appellants were the coparceners and property belonging to coparcenary could not have been alienated without consent of the plaintiffs who were coparceners. It is further submitted that without partition only an undivided share can be sold but not a specific property. It is contended that joint possession of the plaintiffs also cannot be disrupted by such an alienation. Our attention has also been invited to Article 108 and 109 of the Limitation Act, 1963. It is also pointed out that the plaintiffs have asserted that they are in possession of the property and the issue whether the suit is barred by limitation is a mixed question of law and fact, which could not have been decided without recording evidence. In support of aforesaid submissions, reliance has been placed on decision of the Supreme Court in 'KAMALA vs. K.T. ESHWAR SA', AIR 2008 SC 3174 , 'SURJIT KUMAR GIL vs. ADARSH KUMAR GIL', AIR 2014 SC 1476 , 'BALASARIA CONSTRUCTION PVT. LTD., vs. HANUMAN SEVA TRUST, (2006) 5 SCC 658 , 'HARDESH ORES PVT. LTD., vs. M/S HEDEAND CO', 2007 AIR SCW 3456, AND 'VINEETA SHARMA vs. RAKESH SHARMA AND OTHERS', AIR 2020 SC 3717 . 7. LTD., vs. HANUMAN SEVA TRUST, (2006) 5 SCC 658 , 'HARDESH ORES PVT. LTD., vs. M/S HEDEAND CO', 2007 AIR SCW 3456, AND 'VINEETA SHARMA vs. RAKESH SHARMA AND OTHERS', AIR 2020 SC 3717 . 7. On the other hand, Learned Senior Counsel for respondent No. 4 submitted that the suit filed by the plaintiffs is a vexatious suit and even though copy of the sale deed dated 08.07.1996 executed by defendants 1 to 3 in favour of defendant No. 4 has been annexed with the plaint, yet neither any relief of declaration that the sale deed does not bind the plaintiffs nor the relief of setting aside of the sale deed has been prayed for in the suit. It is urged that deliberately no reference has been made in the plaint to the sale deed dated 08.07.1996. It is also pointed out that along with the plaint a copy of the notice dated 05.11.2011 has also been annexed from which it is evident that the fact that the sale deed has been executed in defendant No. 4, as well as the fact that in the revenue records the name of defendant No. 4 has been mutated, has been admitted. It is also urged that the daughters of defendant Nos. 1 to 3 could not be treated as coparceners in the year 1996 and some of the plaintiffs were not even born. It is argued that the Trial Court on the basis of meticulous appreciation of material on record has passed the order rejecting the plaint, which does not call for any interference. In support of aforesaid submissions, reliance has been placed on the decision of the Supreme Court in 'TARIVANDANDAM vs. T.V.SATYAPAL AND ANOTHER', AIR 1977 SC 2421 , 'I.T.C. LTD., vs. DEBTS RECOVERY APPELLATE TRIBUNAL', AIR 1998 SC 634 , 'PEEM SINGH vs. BIKBAL', AIR 2006 SCW 3595 , and 'HARDESH ORES (P) LTD., vs. HEDEAND CO., (2007) 5 SCC 614 . 8. We have considered the submissions made by Learned Counsel for the parties, perused the plaint as well as the documents annexed with it. 8. We have considered the submissions made by Learned Counsel for the parties, perused the plaint as well as the documents annexed with it. Before proceeding further, it is apposite to take note of relevant statutory provisions viz., Order 7 Rule 11 of the Code, Articles 58 and 59 and 108 and 109 of the Limitation Act, 1963, and Section 6(1) of the Hindu Succession Act, 1956, which is reproduced below for the facility of reference: 11. Rejection of plaint- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9 Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. 58. To obtain any other declaration Three Years When the right to sue first accrues. 59. To cancel or set aside on instrument or decree or for the rescission of a contract Three Years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. 108. 58. To obtain any other declaration Three Years When the right to sue first accrues. 59. To cancel or set aside on instrument or decree or for the rescission of a contract Three Years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. 108. Suit during the life of a Hindu or Muslim female by a Hindu or Muslim, who if the female died at the date of instituting the suit, would be entitled to the possession of land, to have an alienation of such land made by the female declared to be void except for her life or until her re-marriage. 108. Suit during the life of a Hindu or Muslim female by a Hindu or Muslim, who if the female died at the date of instituting the suit, would be entitled to the possession of land, to have an alienation of such land made by the female declare to be void except for her life or until her re-marriage Twelve year The date of the alienation. 109. By a Hindu governed by Mitakshara law to set aside his father’s alienation of ancestral property. Twelve years When the alienee takes possession of the property 6(1) Devolution of interest in coparcenary property.--(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall.- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son; and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. 9. The Supreme Court in DAHIBEN vs. ARVINDBHAI KALYANJI BHANUSALI' (2020) 7 SCC 366 , supra after taking note of the previous decisions viz., 'AZHAR HUSSAIN vs. RAJEEV GANDHI', 1986 SUPP SCC 315, 'LIVERPOOL & LONDON S.P. & I ASSN. 9. The Supreme Court in DAHIBEN vs. ARVINDBHAI KALYANJI BHANUSALI' (2020) 7 SCC 366 , supra after taking note of the previous decisions viz., 'AZHAR HUSSAIN vs. RAJEEV GANDHI', 1986 SUPP SCC 315, 'LIVERPOOL & LONDON S.P. & I ASSN. LTD., vs. M.V.SEA SUCCESS I', (2004) 9 SCC 512 , 'SALEEM BHAI vs. STATE OF MAHARASHTRA', (2003) 1 SCC 557 , SWAMY ATMANAND vs. SRI. RAMAKRISHNA TAPOVANAM', (2005) 10 SCC 51 , 'TARIVINDANANDAM vs. T.V. SATYAPAL', (1977) 4 SCC 467 , 'MADANURI SRI RAMA CHANDRA MURTHY vs. SYED JALAL', (2017) 13 SCC 174 , rendered by it has laid down the following propositions of law with regard to scope and ambit as well as the parameters which power under Order 7 Rule 11 of the Code has to be exercised: (i) The remedy under Order 7 Rule 11 is an independent and special remedy which empowers the court to summarily dismiss the suit at the threshold if it is satisfied that any of the grounds contained in Order 7 Rule 11 is made out (ii) The underlying object of Order 7 Rule 11 (a) is that if in any suit no cause of action is disclosed or suit is barred by limitation under Order 7 Rule 11(d), the court would not permit the plaintiff to unnecessarily to protract the proceeding in the suit. (iii) Under Order 7 Rule 11, a duty is cast upon the court to determine whether plaint discloses cause of action by scrutinizing the averments made in the plaint read in conjunction with the documents relied upon or whether the suit is barred by any law. (iv) Having regard to Order 7 Rule 14 CPC, the documents filed along with the plaint are required to be taken into consideration for deciding an application Order 7 Rule 11(a) of the Code and the Court would determined if the assertions made in the plaint are contrary to statutory law or judicial dicta and whether a case for rejecting the plaint at the threshold is made out. (v) If on meaningful reading of the plaint it is found that suit is manifestly vexatious and without any merit and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 of the Code. (v) If on meaningful reading of the plaint it is found that suit is manifestly vexatious and without any merit and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 of the Code. (vi) "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit. (vii) The power under Order 7 Rule 11 of the Code is mandatory in nature and can be exercised at any stage of the suit viz., either before registering the plaint or after issuing summons to the defendant or before conclusion of the trial. (viii) The law does not permit clever drafting of a plaint, which creates illusions of cause of action and what is required is that a clear right must be made out in the plaint. If by clever drafting, an illusion of a cause of action is made, it should be nipped in the bud so that bogus litigation built and at the earliest stage. (ix) The court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court. 10. In the backdrop of aforesaid well settled legal principles, we may advert to the facts of the case on hand. As per averments made in the plaint itself, the land in question was the ancestral property of Javeregowda and the same has devolved on defendants 1 to 3 by successor ship. The aforesaid property has been sold by a registered sale deed dated 08.07.1996 by defendants 1 to 3 to defendant No. 4 for a consideration of Rs. 2,75,000/-. The copy of the sale deed has been enclosed along with the plaint which is evident from the record. It is pertinent to note that Supreme Court in VINEETA SHARMA supra has held that the rights can be claimed by the daughters born earlier with effect from 09.09.2005 as provided in Section 6(1) of the Hindu Succession Act as to the disposition, alienation, partition or testamentary disposition which has taken place before 20.12.2004. It is pertinent to note that Supreme Court in VINEETA SHARMA supra has held that the rights can be claimed by the daughters born earlier with effect from 09.09.2005 as provided in Section 6(1) of the Hindu Succession Act as to the disposition, alienation, partition or testamentary disposition which has taken place before 20.12.2004. In the instant case, the alienation has taken place on 08.07.1996 and the claim of daughters of defendants 1 to 3 viz., plaintiffs 1 to 7, 10 and 11/appellants 1 to 7, 10 and 11 is barred by proviso to Section 6(1) of the Hindu Succession Act as amended by Hindu Succession (Amendment) Act No. 39 of 2005 with effect from 09.09.2005. Thus claim of aforesaid plaintiffs is barred by law. It is pertinent to note that plaintiffs 8 and 9/appellants 8 and 9 were minors on the date of execution of the sale deed and on attaining majority they have not filed the suit within a period of three years. 11. We are conscious of the settled legal proposition that issue of limitation is normally a mixed question of law and fact. In this case the averments made in the plaint and the documents annexed with it namely sale deed and notice sent prior to institution of suit ex-facie show that suit is barred by limitation. It is pertinent to note that the instant case is a case of creating the illusory cause of action. It is relevant to take note of the reliefs claimed in the suit which are reproduced below for the facility of reference: The plaintiff prays for judgment and decree against the defendants (a) For partition and separate possession of the suit schedule land as follows: i) 5/18th share of plaintiffs 1 to 5. ii) 6/21st share of plaintiffs 6 to 11. iii) 6/21st share of Plaintiffs 12 to 17. (b) Preliminary decree be passed accordingly in favour of plaintiffs. (c) For costs of the suit and (d) For such other reliefs as this Hon'ble court may be pleased to grant under the circumstances of the case. The plaintiffs have annexed the copy of the sale deed along with the plaint. However, in the plaint, no relief either with regard to cancellation of the sale deed or the declaration that the sale deed does not bind the plaintiffs has been sought. The plaintiffs have annexed the copy of the sale deed along with the plaint. However, in the plaint, no relief either with regard to cancellation of the sale deed or the declaration that the sale deed does not bind the plaintiffs has been sought. In the absence of such a relief with regard to either cancellation or declaration of the sale deed, the reliefs prayed for in the suit cannot be granted to the plaintiffs. It is noteworthy that relief of either cancellation or declaration that the sale deed does not bind the plaintiffs is barred by limitation. Therefore, intentionally, relief with regard to sale deed has not been claimed in the plaint. In the plaint by an astute drafting, the illusion with regard to accrual of cause of action, on the date of sending the notice seeking partition from defendant Nos. 1 to 3 has been created and deliberately the date of execution of the sale deed in the plaint has not been mentioned though a copy of the same is annexed with the plaint. 12. In this case though by an astute drafting the plaintiffs have made an attempt to bring the suit within limitation, but they have failed in attempt to do so. The Court has to be vigilant against any camouflage or suppression and is under an obligation to ascertain whether a litigation is utterly vexatious or is an abuse of process of the Court. In the instant case, it is axiomatic that the defendants 1 to 3 got filed a vexatious suit which is barred by limitation by their children in collusion with their children got filed a suit through them, with an oblique motive. The suit has been filed after a period of 15 years after the execution of the sale deed and the plea that the cause of action accrued to the plaintiffs on the date when they demanded partition is wholly misconceived. The suit filed by the plaintiffs is an abuse of process of law and a quietus to the same has rightly been put by the Trial Court. The order passed by the Trial Court is based meticulous appreciation of material available on record, which does not suffer from any infirmity. For the aforementioned reasons, we do not find any merit in this appeal, the same fails and is hereby dismissed with costs.