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2021 DIGILAW 952 (KAR)

JAYAMMA v. RATHNAMMA

2021-11-17

R.NATARAJ

body2021
JUDGMENT : R. Nataraj, J. 1. These Revision Petitions are filed by the defendant No. 7 in O.S.No. 2791/2010 pending trial before the IX Additional City Civil and Sessions Judge, Bengaluru (henceforth referred as 'Trial Court') challenging an order dtd. 12/2/2016, by which an application filed under Order VII Rule 11(a) and (d) of CPC was rejected. 2. A suit in O.S.No. 2791/2010 was filed for partition and separation possession of the undivided right title and interest of the plaintiff in suit schedule property. The suit was contested by defendant No. 7, who also filed an application under Order VII Rule (a) and (d) of CPC to reject the plaint. 3. Defendant No. 7 contended in the application that the suit property was purchased by Melappa the grandfather of the plaintiff in terms of the sale deed dtd. 1/3/1946 and that defendant No. 1 was his only son, who succeeded to the property. Thus, it was contended that the said property was the absolute property of defendant No. 1. It is claimed that defendant No. 1 had executed an agreement of sale in favour of defendant No. 7. After a partition between the family members, the defendant Nos.2 and 3 had executed a sale deed dtd. 23/3/2006 in favour of defendant No. 7 in respect of an area measuring 60 ft x40 ft. It was also contended that the plaintiff was not a Class-I heir of Melappa and therefore there was no cause of action for filing the suit. It was also contended that plaintiff had not sought for cancellation of sale deed dtd. 23/3/2006. 4. The Trial Court after considering the plaint averments held that question regarding cancellation of sale deed would be considered only after evidence is recorded and cannot be based on the pleadings and contentions of the learned counsel. The Trial Court also held that whether the defendant No. 1 had received said property in his individual capacity or it was thrown into the common hotchpotch would be the matter of evidence". The Trial Court therefore rejected the application in terms of the impugned order. 5. Being aggrieved by the aforesaid order, the petitioner has filed these two revision petitions. The Trial Court therefore rejected the application in terms of the impugned order. 5. Being aggrieved by the aforesaid order, the petitioner has filed these two revision petitions. Learned counsel for the petitioner submitted that a perusal of the plaint itself indicated that the suit property was purchased by Melappa in the year 1946 and that defendant No. 1 was his only son, who succeeded to the suit property. Therefore, he contended that the land in question was the absolute property of defendant No. 1. Therefore, he contended that the plaintiff cannot claim any share. He therefore contended that the suit for partition was not maintainable. He also contended that the plaintiff ought to have sought for cancellation of sale deed dtd. 23/3/2006 executed by defendant Nos.2 and 3. 6. Per contra, learned counsel for the plaintiff submitted that an application under Order VII Rule 11(a) and (d) of CPC needs to be considered only on the averments made in the plaint and not on the assertion made by the defendants in their written statement. He submitted that plaintiff did not accept that defendant No. 1 possessed the suit property as his absolute property. He submitted that there was no statement in the plaint that indicated that the suit property was absolutely owned by defendant No. 1. In that view of the matter, he claimed that Trial Court was right in rejecting the application filed Under Order VII Rule 11(a) and (d) of CPC. He also submitted that since the plaintiff was not a party to the sale deed dtd. 23/3/2006, the question of cancellation of sale deed would not arise as the said sale deed would not bind the interest of the plaintiff. 7. Heard the submissions of learned counsel for parties. 8. A perusal of plaint discloses the following averments: "2. The plaintiff humbly submits that the first defendant is the father of the plaintiff, the defendants 2 to 4 are the elder brothers of the plaintiff, the defendants 2 to 4 are the elder brothers of the plaintiff and further the defendant No. 5 is the elder sister of the plaintiff. 3. The plaintiff submits that the father of the plaintiff, i.e., the first defendant Katappa is the only son to his parents, father namely Melappa @ Melaiah. The father of the first defendant have purchased the agricultural land bearing Sy. 3. The plaintiff submits that the father of the plaintiff, i.e., the first defendant Katappa is the only son to his parents, father namely Melappa @ Melaiah. The father of the first defendant have purchased the agricultural land bearing Sy. No. 40/1 of Nagadevan Halli Village, Kengeri Hobli, Bangalore South Taluk, to an total extent of 2 Acres 05 guntas, through registered Sale deed dt.1/3/1946, which came to be registered as No. 4360, in Book No. I, volume No. 810 at pages 151 to 153, if the office of the Sub-Registrar, Bangalore Taluk, Bangalore, purchased from one Sanjeeva. The Xerox copy of the registered sale deed dt.1/3/1946 executed by Sanjeeva in favour of Melappa @ Melaiah is produced herewith. 4. The plaintiff further submits that the grand father of the plaintiff namely Melappa @ Melaiah enjoyed the said property, agricultural land, cultivated the land and further after the death of Melappa, the defendant No. 1 as the only son to his father enjoyed the said property, got the revenue records, Pavathi Katha transferred in his name in IHC.No. 03/84-85, MR. No. 02/03-04 by the Revenue authorities." 9. The plaint does not disclose the date of death of Mellappa. It also does not disclose whether the plaintiff was born by the time Melappa had expired. Further the partition entered into between the defendants is dtd. 13/9/2005 which is subsequent to 9/9/2005 being the date prescribed under the Hindu Succession (Amendment) Act, 2005, but sale deed in favour of defendant No. 7 is long after the Hindu Succession (Amendment) Act, 2005. The crucial fact is the date of death of grandfather of plaintiff which is not forthcoming from the plaint. In view of the judgment of the Honb'le Apex Court in the case of Uttam vs. Saubhag Singh and Others, (2016) 4 SCC 68 , wherein the Apex Court has held that if once child is born, a coparcenary is created. Therefore defendant No. 1 cannot claim that suit property was his self-acquisition unless he proves that when he succeeded to the suit property, there were no coparceners. In that view of the matter, this being a pure question of fact, the same could not be considered or decided at a preliminary stage while considering an application filed under Sec. VII Rule 11(a) and (d) of CPC. In that view of the matter, this being a pure question of fact, the same could not be considered or decided at a preliminary stage while considering an application filed under Sec. VII Rule 11(a) and (d) of CPC. The other question is namely whether the plaintiff has to seek for cancellation of sale deed. The plaintiff admittedly is not a party to the sale deed dtd. 23/3/2006. Therefore, it cannot be contended that she is bound by the sale deed dtd. 23/3/2006. Consequently, the trial Court was right in holding that the application filed under Order VII Rule 11(a) & (d) of CPC is not maintainable. There is no merit in these petitions and the same are dismissed. 10. Since the suit is for the year 2010, the Trial Court is requested to expedite and dispose of the suit at any rate within two years from the date of receipt of a certified copy of this order. 11. Any observation made herein shall not affect the disposal of the suit on merits, by the Trial Court.