Madhya Pradesh High Court
Shiv Ratan S/O Shiv Dayal Lakhotia vs Kanhaiyalal S/O Tikamdas And Ors. on 31 August, 1990
Equivalent citations: 1993(0)MPLJ367
ORDER K.L. Shrivastava, J.
1. This revision petition is directed against the order dated 18-1-1989 passed by the IInd Additional Judge to the District Judge, Indore in Civil Suit No. 2 of 1988 whereby the petitioner's application under Order 7, Rule 11(a) of the Civil Procedure Code, 1908 (for short 'the Code') has been dismissed.
2. Circumstances giving rise to the revision petition are these : The non-applicant Kanhaiyalal is the son of Tikamdas, the non-applicant No. 10. The said Kanhaiyalal instituted the aforesaid suit in the year 1965 against his father Tikamdas, his uncles and others for partition of Joint Family property held by Nathmalji, his deceased grandfather who died prior to the enforcement of the Hindu Succession Act, 1956 (for short 'the Succession Act').
3. The petitioner is the son of Sarjubai, the daughter of non-applicant Kanhaiyalal's deceased uncle Gokuldas. On 15-11-1988 he filed the aforesaid application under Order 7, Rule 11 (a) of the Code stating that the nun-applicant Kanhaiyalal, during the life time of his father Tikamdas has no cause of action to sue for partition and the plaint, therefore deserves to be rejected on the ground that it discloses no cause of action. The application was opposed by the non-applicant Kanhaiyalal on the ground that the applicability of the provision in Order 7, Rule 11(a) of the Code is not attracted in the instant case.
4. The learned lower court by the impugned order dismissed the application stating that the controversy as to whether or not the non-applicant Kanhaiyalal has right to sue for partition of the joint family property raised in the application can properly be disposed of only after argument on merits of the case.
5. Learned counsel for the petitioner contends that for the purpose of Order 7, Rule 11 (a) of the Code the petitioner must be taken to admit for the sake of arguments that the plaint allegations are true, reserving his right to controvert those allegations in the further stages of the action, should the preliminary point be overruled. He urges that in leaving the controversy for disposal as to the cause of action at a later stage of the suit, the learned lower Court has failed to exercise its jurisdiction under the provision and the impugned order, therefore, deserves to be interfered with in revision. In support of the contention that the plaint does not disclose any cause of action Sections 4, 6 and 8 of the Succession Act, have been referred to and reliance has been placed on the decisions, amongst others, in W. T. Commr., Kanpur. v. Chandrasen, AIR 1986 SC 1753, Udhishthir's case, AIR 1987 SC 558 = 1987 MPRCJ 201 and Aher Hamir's case, AIR 1978 Guj. 10.
6. The contention of the learned counsel for the contesting non-applicants is that according to the Banaras School of Mitakshara, Hindu Law applicable to the parties (vide paragraph 5 of the plaint) the non-applicant Kanhaiyalal has the right to claim partition of the ancestral property even during the life-time of his father Tikamdas.
7. The point for consideration is whether the revision petition deserves to be allowed.
8. Order 7, Rule 11(a) of the Code provides that a plaint shall be rejected where it does not disclose a cause of action. It may be pointed out that there is distinction between a case where a plaint does not disclose cause of action and another where it does disclose cause of action but the Court on evidence comes to the conclusion that there is no cause of action.
9. Gopaldas died in the year 1962. Section 6 of the Succession Act consists of four paragraphs. The first paragraph reads as under : --
"6. Devolution of interest in Coparcenary property. -- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act."
The proviso below this first paragraph prunes the principle of devolution by survivorship by providing that in the circumstances specified by it, the interest of the deceased in the Mitakshara coparcenary property would roll down by testamentary or intestate succession. It may be pointed out that the succession is only regarding the interest of a deceased coparcener. It has nothing to do with the disruption of the joint family status. The other coparcerners continue to be joint on the death of a coparcener till a partition is effected.
9-A. Section 8 of the Succession Act does not relate to Mitakshara coparcenary property. It lays down that the separate property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II.
10. At pages 328 and 329 of N. R. Raghavachariar's Hindu Law, Principles and Precedents, Eighth Edition 1987 it has been pointed out that the son, the grandson or the great grandson is entitled to claim partition of the movable and immovable property of the joint family against the father, the grandfather and the great-grandfather even without the latter's consent and against his wish subject to the exception recognized in the Bombay Presidency and in the Punjab that the son is not entitled to claim partition without the consent of the father when the latter is joint with his own father or collaterals. This disability of the sons is subject to there having been no previous severance in status between the father and others. According to Mitakshara Hindu Law the son, grandson and the great grandson acquire interest in the coparcenary property by birth and there is nothing in the Succession Act preventing the application of this rule of Hindu Law as to the acquisition of interest by birth.
11. In the decision in Udhishthir's case (supra) it has been pointed out that interest in ancestral property acquired by birth under the Mitakshara Law is so connected with the right to partition that it does not exist independently of such right. The decision in Girdharilal's case, AIR 1955 M.P. 148 may also be usefully perused.
12. From the foregoing discussion it follows that as the parties are governed by Banaras School of Mitakshara Hindu Law, it cannot be successfully urged that in the coparcenary property the non-applicant Kanhaiyalal acquired no interest by birth and cannot claim partition in the life time of his father. It may be pointed out that persons who are entitled to a share in partition and those who can claim partition are not the same. Co-parcenary commences with a common ancestor and includes a holder of joint property and only those males in his male-line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to be found in the peculiar tenet of the Hindu religion that only male descendants upto three degrees can offer spiritual ministration to an ancestor. Thus coparcenary is a narrower body than a joint family and consists of only those persons who have taken by birth the interest in the property of the holder for the time and can enforce partition whenever they like. Reference in this connection may usefully be made to the decisions in Gowli Buddanna's case, AIR 1966 SC 1523, Bank of India v. Ghamandiram, AIR 1969 SC 1330 and in Narendranath's case, AIR 1970 SC 14. The decisions in Aher Hamir's case (supra) and in Jaswantlal's case, AIR 1964 Guj. 283 are distinguishable and the ratio of those decisions is not attracted in the partition suit in the State of M. P. The decision in Bhaskar's case, AIR 1953 Nag. 326 may also be usefully perused.
13. Apart from what has been stated above, it has to be remembered that this Court's revisional jurisdiction under Section 115 of the Code is not only limited in scope but is also discretionary. In the decision in S. S. Khanna's case which has been referred to in the decision in Brij Gopal's case, AIR 1973 SC 1096 the following pertinent observation occurs : --
"The interlocutory character of the order, the existence of another remedy to an aggrieved party by way of an appeal from the ultimate order or decree in the proceeding or by a suit, and the general equities of the case being served by the order made are all matters to be taken into account in considering whether the High Court, even in the cases where the conditions which attract the jurisdiction exist, should exercise its jurisdiction."
It is thus clear that while exercising its discretion under Section 115 of the Code, the Court can take into consideration such circumstances and facts as may disentitle the petitioner in a revision petition from being granted any relief.
14. It may be remembered that the application under Order 7, Rule 11(a) of the Code was filed years after the registration of the suit in 1967 which had already reached the stage of evidence by the contesting defendants.
15. As a result of the foregoing discussion. I find that it cannot be held that the plaint does not disclose a cause of action and is liable to be rejected on that score.
16. In the ultimate analysis I find that the impugned order does not call for interference in revision. The revision petition, therefore, fails and is dismissed with costs. Counsel's fee Rs. 150/-, if certified. Record of the Court below be sent back immediately.