Karnataka High Court
Sri.P.L.N.Swamy vs Smt.Marudevamma on 5 July, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:23162
CRP No. 173 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE R
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CIVIL REVISION PETITION NO. 173 OF 2023 (IO)
BETWEEN:
SRI.P.L.N.SWAMY
AGED ABOUT 56 YEARS
S/O SRI SATYANARAYANA RAJU
R/AT NO 402, SRI SAI RESIDENCY
1ST MAIN, BHUVANESHWARI NAGAR
C V RAMAN NAGAR. BANGALORE 560093
REP BY GPA HOLDER
SRI K THYAGARAJA REDDY, AGED 57 YEARS
R/AT NO 401, SAI KRUPA REGENCY
1ST MAIN, BHUVANESHWARI NAGAR
C V RAMAN NAGAR. BANGALORE 560093
...PETITIONER
(BY SRI. RAVEENDRAN P., ADVOCATE)
AND:
Digitally signed
by CHANDANA SMT.MARUDEVAMMA
BM D/O LATE PULLANNA
Location: High SINCE DEAD BY LRS
Court of
Karnataka 1. SMT SHASHIKALA D S
AGED ABOUT 53 YEARS
D/O LATE MARUDEVAMMA
2. SHRI. ANANHARAJU D S
AGED 51 YEARS
D/O LATE MARUDEVAMMA
3. SMT NAGALAHA D S
AGED 46 YEARS
D/O LATE MARUDEVAMMA
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NC: 2023:KHC:23162
CRP No. 173 of 2023
4. SMT YESHSWATHI
AGED 52 YEARS
D/O LATE PULLANNA
5. SMT SUMANGALA
AGED 50 YEARS
D/O LATE PULLANNA
6. SRI AJITH KUMAR
AGED 56 YEARS
S/O LATE PULLANNA
7. SRI BRAHMAPRAKASH
AGED 48 YEARS
S/O LATE PULLANNA
8. SRI MAHAVEER
AGED 44 YEARS
S/O LT PULLANNA
9. SRI. SUDARSHAN
AGED 38 YEARS
S/O LT PULLANNA
R1 TO 9 ARE
R/A BELATHUR VILLAGE
KADUGODI POST
BANGALORE EAST TALUK
BANGALORE 560067
KRISHNA REDDY
SINCE DEAD BY LRS
10.
SRI T K SADASHIVA REDDY
AGED 45 YEARS
S/O LATE KRISHNA REDDY
11. SRI SAMAPANGI REDDY
AGED 42 YEARS
S/O LATE KRISHNA REDDY
12. SRI SRINIVASA REDDY
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NC: 2023:KHC:23162
CRP No. 173 of 2023
AGED 39 YEARS
S/O LATE KRISHNA REDDY
13. SMT NAGAVENI
AGED 35 YEARS
D/O LATE KRISHNA REDDY
R10 TO 13 ARE
R/AT THUBARAHALLI VILLAGE
VARTHUR HOBLI
BANGALORE 560066
14. SMT MUNIANJINAMMA
W/O L S KRISHNAPPA
AGED 50 YEARS
R/A HUSKUR VILLGE
VIRGONAGAR POST
BIDARAHALLI HOBLI
BANGALORE EAST TALUK
BANGALORE 560049
...RESPONDENTS
(BY SRI. G. KRISHNAMURTHY, SENIOR ADVOCATE, FOR
SRI. SURESH BABU B.N., ADVOCATE FOR R1 TO R5;
SRI. MAHABALESHWAR G.C., ADVOCATE FOR R14;
(V/O. DATED 17.03.2023 NOTICE TO R6 TO R13 ARE D/W)
THIS CRP IS FILED UNDER SECTION 115 OF CPC, TO SET
ASIDE THE IMPUGNED ORDER DATED 14.12.2022 REJECTING
I.A.NO.7 FILED BY THE PETITIONER, UNDER ORDER VII, RULE
11(A) AND (D) OF THE CODE OF CIVIL PROCEDURE, 1908 AS
PER ANNEXURE-A BY ALLOWING THE CIVIL REVISION
PETITION AND CONSEQUENTLY REJECT THE PLAINT IN
O.S.NO.1013/2010.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:23162
CRP No. 173 of 2023
ORDER
This petition is directed against the common impugned order dated 14.12.2022 passed in O.S.No.1013/2010 by the II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, whereby the application - I.A. No.7 filed by the petitioner-defendant No.7 under Order VII Rule 11(a) & (d) of the Code of Civil Procedure, 1908, seeking rejection of the plaint was rejected by the Trial Court and I.A. No.8 filed by the plaintiff under Order VI Rule 17 of CPC for amendment of the plaint was rejected by the Trial Court.
2. Heard the learned counsel for the petitioner and the learned Senior Counsel for respondents No.1 to 5 and perused the material on record.
3. The material on record discloses that respondents No.1 to 5-plaintiffs instituted the aforesaid suit against the petitioner-defendant No.7 and other defendants for partition and separate possession of their -5- NC: 2023:KHC:23162 CRP No. 173 of 2023 alleged share in the suit schedule immoveable property. In the said suit, the petitioner, who was arrayed as defendant No.7, not only filed his written statement contesting the suit but also filed the instant application I.A. No.7 under Order VII Rule 11 of CPC seeking rejection of the plaint. Subsequent to I.A.No.7 being filed by the petitioner- defendant No.7, respondents No.1 to 5-plaintiffs filed an application - I.A. No.8 seeking amendment of the plaint. Both the application having been contested by opposite parties, the Trial Court proceeded to pass the impugned order whereby I.A. No.7 filed by the petitioner was rejected and I.A.No.8 filed by respondents No.1 to 5- plaintiffs was allowed. Aggrieved by the impugned order rejecting I.A. No.7, the petitioner is before this Court by way of the present petition.
4. In addition to reiterating various contentions urged in the petition and referring to the material on record, the learned counsel for the petitioner invited my attention to the plaint averments in order to contend that -6- NC: 2023:KHC:23162 CRP No. 173 of 2023 the plaintiffs are, undisputedly, daughters of one late Pullanna, who had sold the suit schedule property in favour of defendant No.5 on 09.08.1982 itself prior to coming into force of the Hindu Succession Act, 2005 with effect from 09.09.2005 and consequently, in the light of the specific contention that the respondents No.1 to 5- plaintiffs that the suit schedule property was a joint family property which had been alienated by way of a registered sale deed on 09.08.1982 prior to coming into force of the Hindu Succession Act, 2005 (for short, 'the Act'), the plaintiffs were not entitled to any share in the suit schedule property in view of the proviso to Section 6 of the Act. Secondly, it is contended that during his life time itself, the aforesaid Pullanna, and his sons, the defendants No.1 o 4 in the present suit, were involved in a litigation against the purchaser Krishna Reddy (defendant No.5 in the present suit) which culminated in favour of the said Krishna Reddy against Pullanna and his sons vide judgment and decree dated 28.07.1998 passed by this Court in R.S.A. No.2/1995 which has attained finality and -7- NC: 2023:KHC:23162 CRP No. 173 of 2023 become conclusive and binding upon Pullanna and all his children including the plaintiffs herein and consequently, the plaintiffs did not have any manner of right, title or interest or possession over the suit schedule property which disentitled them from putting forth any cause of action in the present suit. Thirdly, it is contended that subsequently, the defendants No.1 to 4 were involved in one more litigation in O.S.No.2099/2005 against Krishna Reddy which was also compromise vide compromise decree dated 05.03.2009 as a result of which the right, title, interest and possession of Krishna Reddy over the suit schedule property was confirmed and affirmed. It is, therefore, contended that apart from the fact that the plaintiffs were guilty of suppression of material facts having not disclosed the earlier litigations between their father, Pullanna, and their brothers defendants No.1 to 4 herein with Krishna Reddy, which ultimately culminated in favour of Krishna Reddy, the present suit is a result of fraud and collusion between defendants No.1 to 4, who are none other than the sons of Pullanna and brothers of -8- NC: 2023:KHC:23162 CRP No. 173 of 2023 plaintiffs who had been set up by the defendants No.1 to 4 to file the present suit which was clear abuse of process of law and was a vexatious and frivolous litigation which deserves to be nipped in the bud and the plaint was liable to be rejected. Fourthly, it is contended that without seeking the prayer for cancellation of the sale deed dated 09.08.1992, referred to in para 7 of the plaint, executed by Pullanna in favour of Krishna Reddy or at least for a declaration that the same was not binding upon the plaintiffs' alleged undivided share over the suit schedule property, the present suit for partition and separate possession simpliciter was not maintainable without seeking appropriate relief and on this ground also, the plaint was liable to be rejected. Fifthly, it is contended that by way of the proposed amendment, the plaintiffs seek to challenge the sale deed dated 09.08.1982 executed by late Pullanna referred to in the plaint, after almost thirty years and as such, the suit, albeit filed in the year 2010, was hopelessly barred by limitation, particularly, when the registered sale deed constitutes constructive notice to all -9- NC: 2023:KHC:23162 CRP No. 173 of 2023 persons including the plaintiffs whose claim was clearly barred by time. Lastly, it is contended that the plaint averments themselves show that the suit schedule property was acquired by late Pullanna vide government grant bearing SC No.15/1969-70 pursuant to which the katha/revenue records were registered in his name which would establish that the suit schedule property was his separate and self-acquired property and, in the absences of any averment in the plaint to the effect that the suit schedule property was a joint family property of the plaintiffs, Pullanna and their brothers -defendants No.1 to 4, the suit schedule property being the granted property of late Pullanna was his separate and self-acquired property in which the plaintiffs did not have any share so as to enable them to put forth a claim over the suit schedule property and on this score also, the plaint was liable to be rejected.
5. Per contra, learned Senior Counsel for respondents No.1 to 5-plaintiffs would support the
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NC: 2023:KHC:23162 CRP No. 173 of 2023 impugned order and submits that the relationship between the parties is not in dispute and the plaintiffs were not parties to the sale deed dated 09.08.1982 executed by late Pullanna in respect of the suit schedule joint family property, and the question of rejecting the plaint based on the plaint averments would not arise in the fact and circumstances of the case. It is, therefore, submitted that there is no merit in the petition and the same is liable to be dismissed.
6. I have given my anxious consideration to the rival contentions and perused the material on record.
7. The only point that arises for consideration is, whether the plaint is liable to be rejected under Order VII Rule 11(a) and (d) of CPC. In this context, it is relevant to extract the relevant averments made in the plaint which are as under:
"2. The plaintiffs respectfully submit that originally property bearing Sy No.9, measuring 2 acres 30 guntas, situated at Chikkabanahalli Village, Bidarahalli Hobli, Bengaluru East Taluk, originally the property acquired by the
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NC: 2023:KHC:23162 CRP No. 173 of 2023 plaintiffs and defendants No.1 to 4 father Late. Pullanna acquired the suit property through Dharkast Grant Rules as per No.S.C No.15/1969-70, as per the order the revenue documents got transferred his name as khatha No.73, as on the date of acquire the suit property the said Pullanna and his family the plaintiffs and defendants No.1 to 4 are in joint possession of the suit properties and were constituted a Hindu joint family.
3. The plaintiffs submit that the Late. Pullanna is died leaving behind the plaintiffs and defendants No.1 to 4 are succeed to his estate of deceased and succeeded and continued in the joint family status. After demise of plaintiffs father the plaintiffs have common right, equal share of the joint family property but the defendants No.1 to 4 are colluded each other's not yet ready to given the share to the plaintiffs in the suit property. However the plaintiffs and defendants No. 1 to 4 are in joint possession and enjoyment of the suit schedule property and so far there is no legal partition among themselves and yet to partition in the suit schedule property.
4. The plaintiffs respectfully submit that the plaintiffs and defendants No.1 to 4 are constituted a joint Hindu undivided family and are in joint possession and enjoyment of the schedule property. It is submitted that the schedule property is the joint family property as such neither plaintiffs nor defendants No.1 to 4 alone cannot exercise right to transfer the property which belongs to the joint family in which the plaintiffs and defendants No.1 to 4 are having equal right and common share in all aspects.
5. The plaintiffs respectfully submit that in the life time Late. Pullanna acquired the suit property through Grant Rules.
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NC: 2023:KHC:23162 CRP No. 173 of 2023 The defendant No.1 to 4 taking advantage of the documents stands in their names, they hand in glove among themselves, ignoring the rights of the plaintiffs in the joint family and moreover plaintiffs and defendants No.1 to 4 are having equal share in joint family property. Now the defendants under malafide intention to deprive the valuable rights and interest of the plaintiffs, but the defendant No:5 is illegally collude to K.S.Brahamrayappa without knowledge of plaintiffs the one defendants No.1 to 4 father Late. Pullanna, documents and same as GPA holder K.S.Brahamrayappa executed a registered sale deed in favour of the defendant No.5 taking law in his hand and support of defendants No.1 to 4 without knowledge of the plaintiffs executed the sale deed document No.1182/1982-83, volume No.1641, Book-I, dated:
09.08.1982, register in the office of the Sub-registrar, Hoskote, the same as not binding on the plaintiffs. Since there is no legal partition among the joint family members in the suit property and plaintiffs father as not executed any GPA in their favour the same created to cheat to the plaintiffs, the same as plaintiffs are still are in possession of the suit property as joint family members. The defendants are not consent to the plaintiffs."
As is clear from the averments made in the plaint, it is the specific contention of the plaintiffs that late Pullanna
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NC: 2023:KHC:23162 CRP No. 173 of 2023 executed the registered sale deed dated 09.08.1982 in favour of defendant No.5 which was not binding upon the plaintiffs since the suit schedule property was a joint family property in which they were entitled to their legitimate share even as on the date of execution of the sale deed.
8. In the light of the specific contention that the suit schedule property was a joint family property in which the plaintiffs had an undivided share, it is necessary to extract Section 6 of the Hindu Succession Act, which reads as under:
6. 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,
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NC: 2023:KHC:23162 CRP No. 173 of 2023 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. It is trite law that in the case of Vineeta Sharma Vs. Rakesh Sharma and Others1, the Apex Court had held that by virtue of the said provision, all daughters would be entitled to equal share in coparcenery property. However, the proviso to Section 6 makes it unmistakably clear that the right created/vested in favour of daughters of a coparcener by virtue of the amendment would not effect or invalidate any alienation that had taken place before cut-off date i.e., 20.12.2004. In the instant case, even as per the plaint averments, the plaintiffs-daughters of Pullanna claim undivided share in the suit schedule property on the ground that the same was coparcenery 1 (2020)9 SCC 1
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NC: 2023:KHC:23162 CRP No. 173 of 2023 property and that the alienation was not binding upon them. However, in the light of the undisputed fact that the alienation by Pullanna under the sale deed dated 09.08.1982 had undisputedly, been made and had taken place prior to the cut-off date i.e., 20.12.2004, the proviso to Section 6 would be applicable to the facts of the instant case even as per the plaint averments and consequently, the suit of the plaintiffs which proceeds on the ground that the suit schedule property was a joint family property was barred by the provisions of Section 6 of the Hindu Succession Act, 2005. In Vineeta Sharma's case (supra), the Apex Court has held as under:
"56. The daughter is treated as a coparcener in the same manner as a son by birth with the same rights in coparcenary property and liabilities. However, the proviso of sub-section (1) contains a non obstante clause providing that nothing contained in the sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20-12-2004."
"60. The amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son".
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NC: 2023:KHC:23162 CRP No. 173 of 2023 Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9-9-2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20-12-2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated."
"119. Shri R. Venkataramani, Amicus Curiae, argued that the proviso to Section 6 is plain and clear. All dispositions, alienations, testamentary depositions, including partition effected prior to 20-12-2004, shall not be reopened. There may be a partition of coparcenary property, and they would have also acted in pursuance of such partition. There could be any number of instances where parties would have entered into family settlements or division of properties on the basis of respective shares or entitlement to succeed on a partition. In many of those cases, a simple mutation in revenue entries would have been considered as sufficient for severance of status. Parliament did not intend to upset all such cases, complete transactions, and open them for a new order of succession. The partition effected merely to avoid any obligation under any law, for example, the law relating to taxation or land ceiling legislation, are not examples relevant for understanding the objects and scheme of Section 6.
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NC: 2023:KHC:23162 CRP No. 173 of 2023 Therefore, the proviso to sub-section (1) of Section 6 and sub-section (5) of Section 6 is required to be given such meaning and extent to not dilute the relevance in the forward and future-looking scheme of Section 6. The past cases shall not be reopened for this purpose. He has relied upon Shashikalabai."
"137. Resultantly, we answer the reference as under:
137.1. XXX 137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004."
10. As stated supra, it is the specific contention of the plaintiffs that the suit schedule property is a joint family property in which they had/have an undivided share along with Pullanna and their brothers, defendants No.1 to 4 in the suit. However, in view of the specific admission made at para 5 of the plaint to the effect that Pullanna had alienated the suit schedule property by executing registered sale deed dated 09.08.1982 through his GPA Holder K.S.Brahamrayappa, the alleged right/share of the plaintiffs over the suit schedule property would be circumscribed and subject to proviso to Section 6 as held
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NC: 2023:KHC:23162 CRP No. 173 of 2023 by the Apex Court in Vineeta Sharma's case (supra) and consequently, the alienation having been made prior to 20.12.2004, the cut-off date, under Section 6 of the Hindu Succession Act, 2005, I am of the considered opinion that the plaintiffs would not be entitled to the benefit of Section 6 of the Hindu Succession Act, 2005, especially when the proviso to Section 6 clearly saves the alienation/sale deed in favour of defendant No.5 which occurred on 09.08.1982, much prior to the cut-off date stipulated in the said proviso i.e., 20.12.2004. It is needless to state that in the face of the said sale deed dated 09.08.1982 which was executed in respect of the entire suit schedule property in favour of defendant No.5 coupled with the non-applicability of Section 6 of the Amendment Act, 2005, the claim of the plaintiffs for a share in the suit schedule property on the ground that it was a joint family property is clearly not sustainable and the same is liable to be rejected as barred by law under Order VII Rule 11(d) of CPC.
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11. A perusal of the averments made in the plaint and the relief sought for by the plaintiffs will indicate that though it is the specific contention that the suit schedule property was a joint family property and that the alienation vide sale deed dated 09.08.1982 executed by Pullanna was not binding upon the plaintiffs, they have neither sought for cancellation of the sale deed nor for a declaration that the sale deed was not binding upon them. The reliefs sought for in the suit are as under:
"a) To pass a judgment and decree that the plaintiffs are entitled for equal 3/7th share in the suit property to the plaintiffs and to put separate possession of their share.
b) To direct the defendants to render proper accounts to the plaintiffs.
c) To direct an enquiry into future manse profits under order 20 rule 12 of the code of civil procedure.
d) To restraining the defendants No.5 and their agents, representative henchmen or any person or persons claiming through or under them from alienating suit schedule property.
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e) To award cost of suit."
12. In this context, it is relevant to refer to judgment of the Apex Court in the case of Suhird Singh Alias Sardool Singh Vs. Randhir Singh and Others2, wherein it is held as under:
"Leave granted. The appellant filed a suit (Case No. 381 of 2007) on the file of the Civil Judge, Senior Division, Chandigarh for several reliefs. The plaint contains several elaborate prayers, summarised below:
(i) for a declaration that two houses and certain agricultural lands purchased by his father, S. Rajinder Singh were coparcenary properties as they were purchased from the sale proceeds of ancestral properties, and that he was entitled to joint possession thereof;
(ii) for a declaration that the will dated 14-7-
1985 with the codicil dated 17-8-1988 made in favour of the third defendant, and gift deed dated 10-9-2003 made in favour of the fourth defendant were void and non est "qua the coparcenary";
(iii) for a declaration that the sale deeds dated 20-4-2001, 24-4-2001 and 6-7-2001 executed by his father, S. Rajinder Singh in favour of the first defendant and sale deed dated 27-9-2003 executed by the alleged power-of-attorney holder of S. Rajinder Singh in favour of the second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the "coparcenary", as they were not for legal necessity or for benefit of the family; and 2 (2010)12 SCC 112
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(iv) for consequential injunctions restraining Defendants 1 to 4 from alienating the suit properties."
"4. The limited question that arises for consideration is what is the court fee payable in regard to the prayer for a declaration that the sale deeds were void and not "binding on the coparcenary", and for the consequential relief of joint possession and injunction."
"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non- binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is
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NC: 2023:KHC:23162 CRP No. 173 of 2023 invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act."
"9. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "coparcenary" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under Section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds."
The aforesaid judgment of the Apex Court was followed by a Division Bench of this Court in the case of Bhimasi Fakirappa Bijjur (since dead) by his L.Rs and Others Vs. Nagesh Bhimappa Waddar3, and it is observed as under:
"13.5 A perusal of the impugned judgment and decree will also indicate that the trial Court has failed to consider and appreciate the well settled position of law that in a suit for partition in relation to alleged joint family properties, which have been alienated by the defendant(s) prior to the suit, in addition to the prayer for partition, it is necessary 3 2023(3) Kar.L.J.203
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NC: 2023:KHC:23162 CRP No. 173 of 2023 for the plaintiffs, who are not parties to the alienation to seek a declaration that the alienations are not binding upon them or their alleged share in the properties. In this regard, it is necessary to refer to the judgment of the Apex Court in Suhrid Singh's case (supra), wherein it was held as under:-
"Leave granted. The appellant filed a suit (Case No. 381 of 2007) on the file of the Civil Judge, Senior Division, Chandigarh for several reliefs. The plaint contains several elaborate prayers, summarised below:
(i) for a declaration that two houses and certain agricultural lands purchased by his father, S. Rajinder Singh were coparcenary properties as they were purchased from the sale proceeds of ancestral properties, and that he was entitled to joint possession thereof;
(ii) for a declaration that the will dated 14-
7-1985 with the codicil dated 17-8-1988 made in favour of the third defendant, and gift deed dated 10-9-2003 made in favour of the fourth defendant were void and non est "qua the coparcenary";
(iii) for a declaration that the sale deeds dated 20-4-2001, 24-4-2001 and 6-7- 2001 executed by his father, S. Rajinder Singh in favour of the first defendant and sale deed dated 27-9-2003 executed by the alleged power-of-attorney holder of S. Rajinder Singh in favour of the second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the
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NC: 2023:KHC:23162 CRP No. 173 of 2023 "coparcenary", as they were not for legal necessity or for benefit of the family; and
(iv) for consequential injunctions restraining Defendants 1 to 4 from alienating the suit properties.
6. The second proviso to Section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause
(v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under sub- clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under sub- clause (e) thereof.
7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court
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NC: 2023:KHC:23162 CRP No. 173 of 2023 fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act."
13.6 A similar view was taken in Ganapati Santaram Bhosale's case (supra),by the Division Bench of this Court, wherein it was held as under:-
"19. The second contention that the suit should have failed for lack of specific relief in regard to the setting aside of the sales is also devoid of merit. It is now well settled that in a suit for partition by Hindu coparcener it is not necessary for him to seek the setting aside of the sale. It is sufficient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not bound by any alienations or interest of others created in such properties which, fall to his share:"
13.7 In the instant case, it is an undisputed fact that except seeking for a decree for partition simpliciter, the plaintiffs have not sought for any declaration that the alienations made by defendant No.1 prior to the suit during the years 1980-1985
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NC: 2023:KHC:23162 CRP No. 173 of 2023 are not binding upon them. It is well settled that Kartha of a Hindu undivided family is empowered to alienate joint family/ancestral properties for legal necessity or benefit of the estate of the joint family and the validity of such an alienation would have to be adjudicated depending on the facts of the case. In other words, there was no bar for defendant No.1 to alienate the suit schedule properties in favour of defendant Nos.2 to 11 including the alleged share of the plaintiffs and so long as the said alienations were affected prior to institution of the suit, it was incumbent upon the plaintiffs to seek a declaration that the said alienations by defendant No.1 were not binding upon the plaintiffs or their alleged share in the suit schedule properties.
13.8 This crucial aspect of the matter, which affects maintainability of the suit, in our considered opinion has not been considered or appreciated by the trial Court and consequently, the impugned judgment and decree passed by the trial Court decreeing the suit of the plaintiffs for partition simpliciter without seeking appropriate relief of declaration deserves to be set aside on this ground also.
As can be seen from the ratio laid down in the aforesaid judgments, in order to claim a right over the suit schedule
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NC: 2023:KHC:23162 CRP No. 173 of 2023 property, it is incumbent upon the plaintiffs to seek at least a declaration that the said sale deed dated 09.08.1982 executed by Pullanna was not binding upon them. However, except seeking partition and separate possession of their alleged share over the suit schedule property, appropriate reliefs of declaration, etc. have not been sought for by the plaintiffs and, on this ground alone, the present suit for partition simpliciter without seeking the appropriate reliefs viz., declaration, etc. that the sale deed dated 09.08.1982 executed by Pullanna was not binding upon them was not maintainable and the claim of the plaintiffs, as borne out from the averments in the plaint, was liable to be rejected. In this context, it is needless to state that it is the specific contention of the plaintiffs that they are entitled to a share in the suit schedule property which is a joint family property and that the alienation/sale deed by Pullanna on 09.08.1982 was not binding upon them; it follows therefrom that unless the said sale deed is declared as not binding upon the plaintiffs' alleged share in a manner known to law by
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NC: 2023:KHC:23162 CRP No. 173 of 2023 seeking appropriate relief to void the sale deed to the extent of their alleged share is concerned, a mere/simple suit for partition simpliciter without seeking declaration or other appropriate reliefs would not be maintainable. In other words, the question of granting a share in favour of the plaintiffs as per the plaint averments would arise only and upon seeking a declaration that the sale deed, dated 09.08.1982, referred to in the plaint was not binding upon them, and in the absence of relief in this regard, the question of granting/declaring they have the alleged right in the suit schedule property would not arise. Viewed from this angle also, I am of the view that as per the plaint averments and the sale deed dated 09.08.1982 which has been produced along with the plaint by the plaintiffs themselves, the claim of the plaintiffs is not maintainable and the same is liable to be rejected.
13. The material on record also discloses that the plaintiffs, who became aware regarding the non- maintainability of the suit for want of prayer for
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NC: 2023:KHC:23162 CRP No. 173 of 2023 declaration filed I.A. No.8 seeking amendment of the plaint which was allowed vide the impugned order, which is a common order on I.A. No.7 filed by the petitioner and I.A. No.8 filed by the plaintiffs. It is, therefore, clear that the plaintiffs are completely aware of the fact that the plaint, as it stands today, is not maintainable on the own showing of the plaintiffs and consequently, the Trial Court clearly committed an error in coming to the conclusion that the plaint could not be rejected in the facts and circumstances of the instant case.
14. A perusal of the plaint averments will indicate that the plaintiffs have admitted that the suit schedule property was granted in favour of Pullanna in SC No.15/1969-70 and the revenue records were transferred into his name pursuant to the said government grant. In the entire plaint, the plaintiffs have not stated that the said government grant of the suit schedule property was in favour of the said Pullanna as the 'Kartha' of the joint family or that the said grant enures to the benefit of the
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NC: 2023:KHC:23162 CRP No. 173 of 2023 joint family comprising of plaintiffs, Pullanna and their brothers. On the other hand, the plaint simply states that the suit schedule property was granted in favour of Pullanna and that the same was a joint family property merely because the plaintiffs, Pullanna and defendants No.1 to 4 were joint family members. In this regard, it is relevant to state that in the light of the specific averment made in para 3 of the plaint that the suit schedule property had been granted in favour of Pullanna by the State Government, it was absolutely incumbent upon the plaintiffs to state as to how the suit schedule property was a joint family property despite having been granted in the individual name of Pullanna; to put it differently, having admitted that the suit schedule property was granted in the individual name of Pullanna and having not averred anywhere that the said grant made in his favour as a 'Kartha' was on behalf of the plaintiffs also, the only inference that can be drawn from the plaint averments and the documents produced by the plaintiffs is that the suit schedule property was the separate and self-acquired
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NC: 2023:KHC:23162 CRP No. 173 of 2023 property of late Pullanna also. Under these circumstances, having regard to the plaint averments which establishes that the plaintiffs have themselves admitted and contended that the suit schedule property being a government grant was the separate and self-acquired property of late Pullanna coupled with absence of necessary details/particulars as to how the suit schedule property was a joint family property, the claim of the plaintiffs for partition is liable to be rejected on this ground also.
15. A perusal of the plaint averments including the cause of action column will also indicate that despite admitting that the suit schedule property had been sold in favour of defendant No.5 by late Pullanna on 09.08.1982 itself, the plaintiffs have admitted to create a non-existent cause of action by referring to a alleged panchayat on 20.09.2010, 02.10.2010 and 30.10.2010 between the plaintiffs and defendants No.1 to 4, which is palpably false inasmuchas the suit schedule property had already been alienated in favour of defendant No.5 in 1982 itself and he
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NC: 2023:KHC:23162 CRP No. 173 of 2023 was not a party to the aforesaid panchayat and moreso, when the defendants No.1 to 4 did not retain any subsisting right over the suit schedule property as on the date of the alleged panchayat. A perusal of plaint averments in the light of the admission of execution of the sale deed on 09.08.1982 by Pullanna in favour of defendant No.5 is sufficient to lead to the inference and come to the conclusion that by clever and shrewd drafting, plaintiffs have attempted to create an illusory/non-existent cause of action to institute the suit which is clearly impermissible in law and is liable to be rejected at the threshold. Under these circumstances, the plaint in the instant suit was liable to be rejected and failure to appreciate this by the Trial Court has resulted in erroneous conclusion.
16. It is true that, for the purpose of considering an application under Order VII Rule 11 of CPC, it is only the plaint averments and documents produced along with the plaint that can be looked into and not the
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NC: 2023:KHC:23162 CRP No. 173 of 2023 defence/documents of the defendants. However, in the facts and circumstances of the instant case which involves previous litigations between the plaintiffs and their predecessors-in-title i.e. Pullanna through and under whom they claim a right which are evidenced by judicial proceedings and court records, it would be necessary to refer to the said documents in order to appreciate the claim of the plaintiffs. In this context, as rightly contended by the learned counsel for the petitioner, the aforesaid Pullanna having lost the previous round of litigation between himself and defendant No.5 vide judgment and decree dated 28.07.1998 passed by this court in R.S.A. No.2/1995 that the litigation between defendants No.1 to 4, the sons of Pullanna and brothers of plaintiffs, which culminated in favour of defendant No.5 vide compromise decree dated 05.03.2009 passed in O.S. No.2099/2005, the present suit filed subsequently in the year 2010 is clearly an abuse of process of law and Court, and a vexatious, speculative and false litigation instituted at the instance of defendants No.1 to 4 as is clear from material
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NC: 2023:KHC:23162 CRP No. 173 of 2023 on record. In this context, it is relevant to refer to the judgment of the Apex court in the case of T.Arvindandam vs. T.V.Satyapal and another4 wherein it was held as under:
"1. The pathology of litigative addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of parties to launch frivolous and vexatious cases.
2. Here is an audacious application by a determined engineer of fake litigations asking for special leave to appeal against an order of the High Court on an interlocutory application for injunction. The sharp practice or legal legerdemain of the petitioner, who is the son of the 2nd respondent, stultifies the court process and makes a decree with judicial seals brutum fulmen. The long arm of the law must throttle such litigative caricatures if the confidence and creditibility of the community in the judicature is to survive. The contempt power of the Court is meant for such persons as the present petitioner. We desist from taking action because of the sweet reasonableness of counsel Sri Ramasesh.
3. What is the horrendous enterprise of the petitioner? The learned Judge has, with a touch of personal poignancy, judicial sensitivity and anguished anxiety, narrated the sorry story of a long-drawn out series of legal proceedings revealing how the father of the petitioner contested an eviction proceeding, lost it, appealed against it, lost again, moved a revision only to be rebuffed by summary rejection by the High Court. But the Judge, in his clement jurisdiction, gratuitously 4 AIR 1977 SUPREME COURT 2421
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NC: 2023:KHC:23162 CRP No. 173 of 2023 granted over six months' time to vacate the premises. After having enjoyed the benefit of this indulgence the maladroit party moved for further time to vacate. All these proceedings were being carried on by the 2nd respondent who was the father of the petitioner. Finding that the court's generosity had been exploited to the full, the 2nd respondent, and the petitioner, his son, set upon a clever adventure by abuse of the process of the court. The petitioner filed a suit before the Fourth Additional First Munsif, Bangalore, for a declaration that the order of eviction, which had been confirmed right up to the High Court and resisted by the 2nd respondent throughout, was one obtained by "fraud and collusion".
He sought an injunction against the execution of the eviction order. When this fact was brought to the notice of the High Court, during the hearing of the prayer for further time to vacate, instead of frowning upon the fraudulent stroke, the learned Judge took pity on the tenant and persuaded the landlord to give more time for vacating the premises on the basis that the suit newly and sinisterly filed would, be withdrawn by the petitioner. Gaining time by another five months on this score, the father and son belied the hope of the learned Judge who thought that the litigative skirmishes would come to an end, but hope can be dupe when the customer concerned is a crook.
4. The next chapter in the litigative acrobatics of the petitioner and father soon followed since they were determined to dupe and defy the process of the Court to cling on to the shop. The trick they adopted was to institute another suit before another Munsif making a carbon copy as it were of the old plaint and playing upon the likely gullibility of the new Munsif to grant an ex parte injunction. The first respondent entered appearance and exposed the hoax played upon the court by the petitioner and the second respondent. Thereupon the Munsif vacated the order of injunction he had already granted. An appeal was carried without success. Undaunted by all these defeats the petitioner came to the High Court in revision and managed to get an injunction over again. The second respondent promptly
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NC: 2023:KHC:23162 CRP No. 173 of 2023 applied for vacating the temporary injunction and when the petitioner came up for hearing before Mr Justice Venkataramayya, counsel for the petitioner submitted that he should not hear the case, the pretext put forward being that the petitioner had cutely mentioned the name of the Judge in the affidavit while describing the prior proceedings. The unhappy Judge, who had done all he could to help the tenant by persuading the landlord, found himself badly betrayed. He adjourned the case to the next day. The torment he underwent is obvious from his own order where he stated:
"I spent a sleepless night yesterday."
Luckily, he stabilised himself the next day and heard arguments without yielding to the bullying tactics of the petitioner and impropriety of his advocate. He went into the merits and dismissed the revision. Of course, these fruitless proceedings in the High Court did not deter the petitioner from daring to move this Court for special leave to appeal.
5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi:
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NC: 2023:KHC:23162 CRP No. 173 of 2023 "It is dangerous to be too good."
6. The trial court in this case will remind itself of Section 35-A CPC and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.
7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to colloborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the cooperation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A Judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy." As stated earlier, the facts of the instant case clearly establishes that the present suit is a result of the abuse of process of Court/law and deserves to be nipped in the bud and on this score also, the plaint is liable to rejected.
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NC: 2023:KHC:23162 CRP No. 173 of 2023
17. A perusal of the impugned order will indicate that the Trial Court has not considered or appreciated the various contentions urged by the petitioner and has come to an erroneous conclusion that evidence is to be recorded and the case can be adjudicated only after a full-fledged trial. The Trial Court also erred in allowing the application I.A. No.8 filed by the plaintiffs seeking amendment of the plaint. In this context, it is relevant to stated that in view of my aforesaid conclusion that the impugned order rejecting I.A. No.7 deserves to be set aside and the plaint is liable to be rejected, the impugned common order insofar as it relates to allowing I.A. No.8 filed by the plaintiffs for amendment of the plaint also deserves to be set aside and I.A. No.8 deserves to be disposed of as not surviving any longer.
18. For the foregoing reasons, I am of the considered opinion that the Trial Court clearly misdirected itself in rejecting I.A. No.7 and allowing I.A. No.8 and
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NC: 2023:KHC:23162 CRP No. 173 of 2023 consequently, the impugned order passed by the Trial Court on I.A. Nos.7 and 8 deserves to be set aside and the plaint is liable to be rejected.
19. In the result, I pass the following:
ORDER
i) The petition is hereby allowed.
ii) The impugned order dated 14.12.2022 passed on I.A. No.7 and 8 is hereby set aside.
iii) I.A. No.7 filed by the petitioner under Order VII Rule 11 of CPC is hereby allowed and the plaint in O.S. No.1013/2010 is hereby rejected.
iv) In view of the impugned order rejecting I.A. No.7 being set aside and I.A. No.7 being allowed resulting in rejection of the plaint and consequently the dismissal of the suit, the impugned order insofar as it relates to allowing I.A. No.8 is also hereby set aside and the said application I.A. No.8 does not survive any longer and the same is accordingly disposed of.
Sd/-
JUDGE KMS