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2024 DIGILAW 234 (KAR)

S Srinivas v. S Sambaiah

2024-03-20

ANANT RAMANATH HEGDE

body2024
JUDGMENT : Mr. Anant Ramanath Hegde, J. - Heard the learned Senior counsel Sri. B.V.Shankarnarayan Rao, appearing for the appellant and the learned counsel appearing for the respondents. This appeal is arising from the order passed on an application under Order VII Rule 11 of Code of Civil Procedure (for short, 'the Code'). The Trial Court over-ruling the objection of the plaintiff has allowed the application under Order VII Rule 11 of the Code and rejected the plaint on the premise that the suit is barred by law. 2. The plaintiff filed a suit against defendant No.1 alleging that he is the son of defendant No.1 S.Sambaiah claiming share in his properties. Plaintiff claims that he is the son from Kempamma the second wife of S.Sambaiah and the marriage is void. The Trial Court upheld the contention of defendant No.8 who urged that the suit for partition by the son from the void marriage is not maintainable when the father is alive. 3. Aggrieved by the said order which is resulted in a decree, the plaintiff is in appeal. 4. Learned senior counsel for the appellant would contend that the cause of action though was not available and the suit was filed and the cause of action is very much available in view of the death of S.Sambaiah who died on 11.09.2020. Thus he would contend that the appeal is to be allowed and the matter is to be sent back to the Trial Court to decide the claim of the plaintiff who is claiming share in the property of his father S.Sambaiah who died during the pendency of this appeal. 5. Learned senior counsel would also urge that the appellant had the benefit of the interim order which restrained the respondents from alienating the properties till the disposal of the appeal and he would further submit that the benefit of interim order should be extended to the plaintiff till the suit is decided. 6. Learned counsel for the respondents No.1, 2 and 4 to 8 and also the learned counsel for the respondent No.9 would contend that the Trial Court is justified in passing the impugned decree. It is also his submission that in view of the law declared by the Hon'ble Apex Court in Revannsiddappa & Anr. 6. Learned counsel for the respondents No.1, 2 and 4 to 8 and also the learned counsel for the respondent No.9 would contend that the Trial Court is justified in passing the impugned decree. It is also his submission that in view of the law declared by the Hon'ble Apex Court in Revannsiddappa & Anr. v. Mallikarjun AIR 2023 SC 4707 the suit filed by the plaintiff and others was not tenable as the plaintiff could not have made a claim for partition when his father was alive. Thus, he would pray for dismissal of the appeal. 7. This Court has considered the contentions raised at the Bar. 8. The plaintiff claims to be the son from second wife of S.Sambaiah. If so the second marriage was void. Since the plaintiff is said to be the son from the void marriage, the plaintiff could not have maintained a suit in respect of the properties held by S.Sambaiah when S.Sambaiah was alive. Thus, the Trial Court justified in holding that the suit is barred and rightly allowed the application filed by defendant No.8 who prayed for rejection of the plaint. 9. Further, it is to be noticed that S.Sambaiah has died during the pendency of this appeal. If the plaintiff is son of S.Sambhaih, there is cause of action for the plaintiff to file a suit to claim the share in the property left behind by S.Sambhaiah. That being the position instead of driving the plaintiff to file one more suit, this Court is of the view that the suit filed by the plaintiff/appellant shall be continued by the Trial Court by taking the date of S.Sambaiah's death as the cause of action to institute the suit. 10. Though, it is urged that the appeal had the benefit of interim order during the pendency of this appeal, this Court is of the view that the said benefit cannot be extended once the appeal is dismissed. 11. If at all the appellant has to seek any interim relief, it is for him to file appropriate application and to make out a case for such interim measure before the Trial Court. If such an application is filed, the Trial Court shall consider such application on merits, and decide such application without being influenced by the interim order granted during the pendency of this appeal or dismissal of this appeal. 12. If such an application is filed, the Trial Court shall consider such application on merits, and decide such application without being influenced by the interim order granted during the pendency of this appeal or dismissal of this appeal. 12. Accordingly, the appeal is dismissed. 13. The parties shall appear before the Trial Court on 05.04.2024 without awaiting any further notice from the Trial Court. 14. This Court has not expressed any opinion on the merits of the case.