Telangana High Court
Annaluru Yoga Mythri, vs Palagri Vinaya Devi, on 3 April, 2025
THE HONOURABLE SMT JUSTICE K. SUJANA
CIVIL REVISION PETITION No.900 OF 2023
ORDER:
This revision petition is filed challenging the order dated 28.02.2023 passed in IA.No.248 of 2023 in OS.No.469 of 2022 on the file of the II Additional Chief Judge, City Civil Court, at Hyderabad, whereunder, the said I.A., filed by the petitioners/defendant Nos.10 and 11 under Order VII Rule 11 read with Section 151 of Civil Procedure Code (for short 'CPC') with a prayer to reject the plaint in O.S., on the ground that
a) the plaintiffs have no cause of action to bring suit against defendants for partition of suit properties ; b) suit is barred under law ; c) the Court fee paid on the plaint being improper ; and d) suit being frivolous, vexatious and meritless, was dismissed.
2. The brief facts of the case are that OS No 469 of 2022 was filed by respondent NOs.1 and 2/plaintiffs seeking partition of the suit schedule properties against Defendant Nos.1 to 3 who are family members of the plaintiffs, and the other defendants who purchased or acquired interest in the properties from 2 SKS,J CRP.No.900 OF 2023 defendant Nos.1 to 3. The plaintiffs contend that the suit schedule properties are coparcenary properties, inherited from their great-grandfather, Mr.Rikkula Narasimha Reddy, who acquired the properties as an illatom son-in-law in Yasojigudam Village. After his demise, the properties were partitioned among his three sons, and later, B.Sidda Reddy, the father of defendant No.1, orally divided the properties equally between his two sons. The plaintiffs, who are the daughters of defendant Nos.1 and 2 and sisters of defendant No.3, claim a share in the properties as coparceners.
3. Before the trial Court, the petitioners submitted that the plaintiffs have no right or interest in the plaint schedule properties, and the suit is barred under law. The plaintiffs' great-grandfather, B.Narsimha Reddy, married Rikkula Siddava and went to her village, Yasojigudem, as an illatom son-in-law, acquiring no right or interest in his in-laws' properties. The properties devolved on B.Sidda Reddy, B.Raji Reddy, and B.Rami Reddy from their mother, Rikkula Siddava, after her demise. The defendant No. 1 and B.Narsimha Reddy succeeded to the properties of B.Sidda Reddy by way of succession, making 3 SKS,J CRP.No.900 OF 2023 them the exclusive and separate properties of the defendant No.1 and his brother.
4. The petitioners further submitted that the claim of petitioners over the properties is contrary to the recitals of the registered sale deeds, which state that the defendants Nos.1 to 3 purchased the properties with their own funds. Allegedly, the plaintiffs made alienations of the properties purchased in their names, holding out as their true and real owners. The suit is also barred by limitation, as the registered sale deeds were executed long prior to the institution of the present suit. Additionally, the Court fee paid on the plaint is not proper, and the plaintiffs were never in joint possession of the suit property with the defendants. The petitioners prayed that the plaint be rejected at the threshold, relieving the defendants of the burden of carrying frivolous, vexatious, and merit-less litigations.
5. Contrary to the above, a counter affidavit was filed by the respondents before the trial Court stating that the relief as sought for by the petitioners is not maintainable under law and facts, and was filed based on false and baseless allegations. It was contended that the suit is maintainable under Section 17 of CPC, as some of the immovable properties fall within the 4 SKS,J CRP.No.900 OF 2023 jurisdiction of the Court. The plaintiffs and defendants Nos.1 to 3 are part of a Hindu Undivided Family, and the suit schedule properties were purchased using funds from ancestral and joint family properties. The plaintiffs denied the allegations that they have no cause of action to file the present suit and contended that the plaint averments would clearly disclose the cause of action. They also denied the allegation that their great- grandfather, B.Narsimha Reddy, acquired no right or interest over the property of his in-laws. The Plaintiffs contended that the suit is filed within the period of limitation, and they have paid the correct Court fee under Section 34(2) of the Telangana State Court Fees and Suit Valuation Act, as they are in joint and constructive possession of the suit schedule properties.
6. After hearing both sides, the trial Court dismissed I.A.No.248 of 2023 in OS.No.469 of 2022 vide order dated 28.02.2023. Aggrieved thereby, this revision petition is filed.
7. Heard Sri Vadeendra Joshi, learned counsel for petitioner, Sri KS.Suneel, learned counsel for respondent No.1, and Sri Malla Rao, learned counsel for respondent No.2. 5
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8. Learned counsel for petitioners submitted that the properties in question be considered self-acquired properties of Defendant No.1 for several reasons, viz., firstly, the properties were acquired by Mr.Rikkula Narasimha Reddy as an illatom son-in-law. Under Mitakshara Law, properties acquired in this manner are self-acquired and not coparcenary. Further, the properties were partitioned amongst the heirs on two occasions, initially, the properties were partitioned amongst Mr.Rikkula Narasimha Reddy's sons, including B.Sidda Reddy, later, the properties were partitioned amongst B.Sidda Reddy's sons, including Defendant No.1. As a result of the partitions, the properties devolved upon Defendant No.1 as his self-acquired property and that the said partitions were effected under Section 8 of the Hindu Succession Act, 1956, which governs the devolution of self-acquired properties. He contended that the plaint fails to disclose a cause of action due to insufficient averments regarding the formation and continuation of the coparcenary. He incessantly contended that the Plaintiffs never made any specific averments as to how and when the coparcenary was formed and continued. Furthermore, that there was no presumption as to the existence of a coparcenary property after the commencement of the Hindu Succession Act, 6 SKS,J CRP.No.900 OF 2023 1956. He averred that the claim of plaintiffs as coparceners is barred due to the partition of properties prior to the commencement of the 2006 amendment to the Hindu Succession Act, due to which the plaintiffs cannot claim coparcenary rights in the properties. Additionally, that the existence of a will by Defendant No.1, which excludes Plaintiffs from any share in the properties, and that the same supports the rejection of the suit.
9. Learned counsel for petitioner advanced his arguments with regard to suit being barred by limitation, suit being barred under the Benami Transactions (Prohibition) Act and insufficient Court fees, contending that suit is liable to be rejected under Order VII Rule 11 of CPC. He averred that reading of the plaint would reveal that it does not disclose a cause of action, and is barred by law. The Plaintiffs have cleverly avoided mentioning the dates of death of family members, creating an illusionary cause of action and that this omission is significant as the same is essential to determine the devolution of the properties and the existence of a coparcenary. He divulged the Plaintiffs have admitted that the suit schedule properties stand in the name of Defendant Nos. 1 to 3, but they 7 SKS,J CRP.No.900 OF 2023 contend that the said properties are joint family properties. He asserted that the Plaintiffs have not made any specific averments as to how and in what manner the HUF came to exist and continues to exist, and how each of the suit schedule properties forms part of the HUF, lamenting that in the absence of such pleadings, the suit is barred under Section 4(1) of the Benami Act. He incessantly contended that the Plaintiffs have admitted that the exclusion of their right, if any, from the joint family properties, if any, was at least 15 years prior to the date of filing of the suit. Article 110 of the Limitation Act provides that a suit for enforcing a right in joint family property ought to be filed within 12 years from the date of exclusion.
10. In addition to the above, learned counsel for petitioners contended that the learned counsel for the Plaintiffs admitted before the trial Court that the pleadings in the suit were defective, and sought liberty to file a fresh suit with better pleadings and that the said admission is tantamount to acknowledging that the suit is liable to be rejected under Order VII Rule 11. In support of the said contentions, learned counsel for petitioners filed brief written submissions, citing several judgments rendered by the Hon'ble Supreme Court which are 8 SKS,J CRP.No.900 OF 2023 similar to that of the case on hand. Therefore, prayed this Court to allow the present revision petition, setting aside the impugned order as the suit being one without cause of action, barred by law and vexatious in nature.
11. Per contra, learned counsel for respondent Nos.1 and 2, respectively, opposed the submissions made by learned counsel for petitioners and filed brief written arguments, citing several judgments rendered by the Hon'ble Supreme Court, contending that the petition is based on false and baseless allegations and that there are no grounds for rejecting the plaint. It was averred that all properties in the suit schedule, except for three, are situated outside the jurisdiction of Hyderabad city, however, while placing reliance on Section 17 of CPC, it is just to note that the same allows the suit to be tried before the Court as some of the immovable properties fall within its jurisdiction. Further, the allegation that they have no cause of action to file the present suit was denied stating that great-grandfather/B.Narsimha Reddy, acquired rights or interest over the property of his in-laws and that the respondent Nos.1 and 2 purchased the same from the funds of the Hindu Undivided Family nucleus and that all properties were 9 SKS,J CRP.No.900 OF 2023 purchased from the joint family income. They also contended that the suit is filed within the period of limitation and that they have correctly paid the requisite Court fee. Therefore, while advocating that there are no illegalities or infirmities in the impugned order, prayed this Court to dismiss the revision petition as the same lacks merits.
12. Having regard to the rival submissions made and on going through the material placed on record, it is noted that the primary contention of learned counsel for petitioner is with regard to lack of cause of action stating that the subject properties are not joint family properties and are not acquired from paternal side and that they are acquired from maternal side of B.Narsimha Reddy, whereas, while dealing with petition under Order VII Rule 11 the Court has to consider only the plaint averments and as per plaint averments, the great grandfather of plaintiffs i.e., B.Narsimha Reddy got the property from his in laws, as such, the properties are not acquired on paternal side, however, the properties acquired by B.Narsimha Reddy do not come in the meaning of ancestral property as well, as the property acquired from maternal family cannot be considered as ancestral property. When plaintiff referred to the 10 SKS,J CRP.No.900 OF 2023 source from Rikkula Siddava, whether the properties come under coparcenaries or ancestral, cannot be decided in this petition. It is a disputed fact which requires adjudication. Mere averments are not sufficient to decide the said aspect. Therefore, there is no illegality in the finding of the trial Court on this aspect.
13. That apart, the second contention of learned counsel for petitioner is in relation to the plaint remaining silent with regard to date of succession of Siddava and Sidda Reddy and the date of their death as well which would connote to be the core ingredient for determination of real cause of action. From the plaint averments it is seen that B.Narsimha Reddy went to Yesojigudem Village and got married and was blessed with three sons, by names, B.Raji Reddy, B.Rami Reddy and B.Sidda Reddy. The defendant No.1 is son of B.Sidda Reddy and after death of B.Narsimha Reddy, his property got portioned orally among these three sons, out of which the father of defendant No.1 i.e., B.Sidda Reddy got share of property admeasuring 54 acres in several survey numbers of Yesojigudem Village of Yadagirigutta Mandal. Thereafter, the said B.Sidda Reddy was blessed with two sons i.e., defendant No.1 and B.Narsimha 11 SKS,J CRP.No.900 OF 2023 Reddy. On perusing all the averments of the plaint, there is no dispute with regard to the relationship between the parties and also the death of Siddava and Sidda Reddy, non mentioning of date of death is not a ground to reject the plaint. The trial court while adjudicating the matter will consider the said aspects, therefore, there is no force in the said contention.
14. Further, the learned counsel for petitioners had specifically contended that the suit is barred by limitation, citing Section 3 of the Transfer of Property Act, 1882. That being so, it is pertinent to note that the said Section states that a person is deemed to have notice of a transaction involving the sale of immovable property if the transaction is affected by a registered instrument, or if the person is in actual possession of the property. In the case on hand, though the learned counsel contended that the plaintiffs ought to have filed the suit within three years from the date of registration of the sale deeds in the name of the other Defendants, it is relevant to note that it is well-established that the question of limitation is a mixed question of fact and law. Therefore, unless the suit claim is patently barred by limitation, the plaint cannot be rejected. 12
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15. At this juncture, it is relevant to note that in Raptakos Brett and Company Limited Vs. Ganesh Property 1 the Hon'ble Supreme Court held that the question whether the plaint disclosed a cause of action or not should be determined on the basis of averments made in the plaint and nothing else. In the case of Roop Lal Vs. Nacchattar Singh Gill 2, it was held that for determining whether the plaint discloses the cause of action or not, averments in the plaint alone are relevant and material.
16. Furthermore, in Liverpool and London SP and I Association Limited Vs. V. Sea Success I 3, held that whether a plaint discloses a cause of action or not is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. In ascertaining whether the plaint shows a cause of action, the Court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By 1 1998 7 SCC 184 2 1982 3 SCC 427 3 2004 9 SCC 512 13 SKS,J CRP.No.900 OF 2023 the statue the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown. So long as the claim discloses some cause of action or raises some questions fit to be decide by a Judge, the mere fact that the case is weak and nor likely to succeed is not ground for striking it out. The purported failure of the pleadings to discloses a cause of action is distinct from the absence of full particulars. It may be true that Order VII Rule 11(a) although authorizes the Court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein.ofa document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining relief in the suit.
17. That apart, with regard to the sufficiency or insufficiency of Court fees paid, this Court observes that when computing Court fees, the primary consideration must be the recitals in the plaint. In other words, the Court shall focus solely on the averments and allegations made by the plaintiff in the plaint, without taking into account any external factors or evidence. At 14 SKS,J CRP.No.900 OF 2023 the initial stage of proceedings, the primary concern of the Court shall be to determine whether the plaintiff had paid the requisite Court fee based on the averments made in the plaint. Furthermore, it is imperative to note that the Court has the discretion to re-examine the Court fee at any stage of the proceedings, and shall take into consideration the new circumstances that would arise or additional facts to may come into light. The said power is conferred upon the Court under Section 11 of the Act, which enables the Court to direct the payment of the proper Court fee if it determines that the initial fee paid was insufficient. However, this is a secondary consideration that can be addressed at a later stage of the proceedings, i.e., during the course of trial. In the present case, the trial Court has rightly observed that the primary concern would be to determine whether the plaint has been properly presented and whether the requisite Court fee has been paid and the trial Court had specifically held that the Court fee paid is sufficient.
18. The revision petitioners who are defendant Nos.10 and 11 only filed the petition under Order VII Rule 11 of CPC, remaining defendants had not filed any petition for rejection. In 15 SKS,J CRP.No.900 OF 2023 such circumstances, the question would arise whether plaint can be rejected at the instance of some defendants. In this regard, the Hon'ble Supreme Court in the case of Madhav Prasad Aggarwal vs. Axis Bank ltd 4., observed that while considering the issue whether the suit can be continued against some of the defendants, held that such a course is not open to the Court and held that plaint can either be rejected as a whole or not all. The Apex Court further held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the Defendants and continue the same against the others. It is also held that in certain terms that if the plaint survives amongst certain Defendants and/or properties, Order 7 Rule 11 (d) CPC will have no application at all and the suit as a whole must then proceed to trial.
19. Reverting to the facts of the case on hand, it is just and proper to note that the as per the course of law, the plaint can either be rejected, or can be maintained, whereas, there is no such provision in law through which the Court can partially reject the plaint. That being so, it is needless to mention that only defendant Nos.10 and 11 filed the application to reject the 4 2019 7 SCC 158 16 SKS,J CRP.No.900 OF 2023 plaint, and the same cannot be maintainable. In view of the above, though the revision petitioner contended that suit is barred by limitation, there is no cause of action and the Court fee paid is insufficient, further, the grounds raised by the petitioner are rightly discussed by the trial Court. The Courts need to be cautious while dealing with petitions filed for rejection of plaint at the threshold and exercise their powers of dismissal only in cases where even on a plain reading of petition, no cause of action is disclosed. Therefore, this Court is of the firm view that there are no illegalities or infirmities in the impugned order dated 28.02.2023. There are no merits in this revision petition and the same is liable to be dismissed.
20. Accordingly, this Civil Revision Petition is dismissed. There shall be no order as to costs.
Miscellaneous applications, if any pending, shall also stand closed.
_______________ K. SUJANA, J Date:03.04.2025 PT