Bangalore District Court
D/O Late Sri.B.M.Seenappa vs W/O Late Sri.B.M.Seenappa on 13 February, 2015
C.R.P. 67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgement in Suits
(R.P.91)
IN THE COURT OF THE XXII ADDL.CITY CIVIL JUDGE, BANGALORE.
PRESENT:-Sri.D.R.Venkata Sudarshan B.Com.,LL.B.,
XXII ADDL.CITY CIVIL JUDGE.
O.S.No.5352/2007
1.Smt.B.S.Lalitha,
Plaintiffs d/o late Sri.B.M.Seenappa,
Aged about 62 years,
R/a No.10,8th Main,
CHBS Layout,Vijayanagar,
Bangalore - 560 040.
2.Smt.B.S.Vasanthi,
D/o late Sri.B.M.Seenappa,
Aged about 55 years,
R/a No.672/A, 11th Cross,
7th Block West, Jayanagar,
Bangalore.
3.Smt.B.S.Jayanthi,
D/o late Sri.B.M.Seenappa,
Aged about 50 years,
R/a No.98/41, 11th Main,
15th Cross, Padmanabhanagar,'
Bangalore - 560 070.
(By Sri..Majunatha M.S, Advocate)
Vs
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O.S.No.5352/2007
1.Smt.Lakshmidevamma,
Defendants: W/o late Sri.B.M.Seenappa,
Aged about 81 years,
R/a No.88/9, 19th Main,
Padmanabhanagar,
Bvan - 560 070.
2. Sri.B.S.Subhas,
S/o late Sri.B.M.Seenappa,
Aged about 60 years,
Nagaraja Layout, Bull Temple Road,
Chamarajpet, Bangalore - 560 018.
3. Sri.B.S.Jaiprakash,
S/o late Sri.B.M.Seenappa,
Aged about 57 years,
R/a 88/9, 19th Main,
Padmanabhanagr,
Bangalore - 560 070.
4. Sri.B.S.Ramesh,
S/o late Sri.B.M.Seenappa,
Aged about 53 years,
R/a No.415, 4th Cross,
II Block, Jayanagar,
Bangalore - 560 011.
5. Sri.B.S.Ravindranath,
S/o late Sri.B.M.Seenappa,
Aged about 65 years,
R/a No.103, 10th Main,
Basaveshwaranagar,
Bangalore - 560 079.
(D.1 to 3, & 5 by Sri.J.N.Alasingar,
D.4by Sri. Jai Kumar, Advocates)
Date of the institution of the suit 11.7.2007
Nature of the suit Partition and separate possession.
Date of the commencement of
Recording of evidence
Date on which the Judgment 29.11.2008.
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was pronounced.
Total Duration 1 year, 4 months, 8 days.
(D.R.Venkata Sudarshan)
XXII Addl.City Civil Judge,
Bangalore.
ORDER ON THE APPLICATION FILED BY THE DEFENDANTS
UNDER ORDER VII RULE 11 (d) C.P.C
This is an application filed by the defendants 1 to 3 under Order
VII Rule 11 (d) C.P.C praying this court to reject the plaint and dismiss
the suit as not maintainable in view of the proviso to Sec.6 (A) of
Hindu Succession (Amendment) Act, 2005 and also Sec.6A (d) of Hindu
Succession (Karnataka Amendment) Act for the reasons detailed in the
affidavit accompanying the said application.
2. The plaintiffs have filed objection to the said application.
3. The plaintiffs' and defendants' advocates have filed written
arguments.
4. The points that arise for my determination are:-
1. Whether the suit as brought is not
maintainable for the reasons stated in the
application filed by the defendants 1 to 3
under Order VII Rule 11 (d) C.P.C?
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O.S.No.5352/2007
2. Whether the plaint is liable to be rejected?
3. What Order?
5. My finding on the above points are as follows:-
Point No.1:In the Affirmative
Point No.2:In the Affirmative.
Point No.3: As per final order for the following
REASONS
6. This is a suit filed by the plaintiff B.S. Latha and two
others against Smt. Laxmidevamma and five others for partition and
separate possession of 1/8th share each in the plaint schedule
property.
7. The plaint schedule properties are:-
a) Cash of Rs.1,00,000/-,
b) Property bearing No.415/14 situated at Jayanagar.
c) Properties situated at Avenue Road.
d) Property situated R.K.Puram, Bangalore, bearing No.3.
e) Property bearing Sy.No.31/1 of Talagattapura village,
Bangalore South Taluk.
8. The facts of the plaintiff's case in brief are that the plaintiffs
and the defendant No.2 to 5 are the children of Late B.M. Seenappa
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O.S.No.5352/2007
and the 1st defendant and suit properties are the properties left
behind by B.M. Seenappa, who died intestate on 6-3-1985. It is stated
that the suit properties are the joint family properties of the plaintiffs
and defendants and that the plaintiffs have share in it. It is also
stated that the plaintiffs have came to know that the defendants have
purchased the properties ignore the rights of the plaintiffs. The
plaintiffs not only demanded the defendants also issued legal notice to
the defendants calling upon them to partition the suit properties and
all of them claim their shares. Since the defendants did not partition
the properties, the present suit for partition is filed.
9. The defendants 1 to 3 have filed detailed joint written
statement. The relevant paras of the written statement where are
essential for disposal of the present application filed U/o VII Rule 11(d)
CPC are called out below:
"It is further submitted that during 1985, prior to
death, late B.M.Seenappa had given directions orally
allocating the shares in the properties. As per those
directions, the plaintiffs and the defendants divided the
properties of late B.M.Seenappa and subsequently the
defendants got divided the properties among themselves in
the presence of panchayatdars on 6.9.1985. The
defendants 2, 3, 4 and 5 are living separately from the
date of the family partition. The fact of the family
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O.S.No.5352/2007
partition and the defendants living separately after
partition was very much in the knowledge of the plaintiffs
and more particularly with effect from 25.10.1988. The
plaintiffs 2 & 3 were given one site each, situated at
Byatarayanapura, Bangalore by late B.M.Seenappa, as their
share during 1981 itself just after the marriage of plaintiff
No.3. Apart from this, defendant Nos.2 & 3 have spent
hugely for the marriages of plaintiffs 2 & 3. Sufficient
money was paid by late B.M.Seenappa to plaintiff No.1 for
construction of her house. Late B.M.Seenappa, prior to this
death had convinced the plaintiffs that the properties
are to be divided among the sons, as the daughters have
been sufficiently given their share in his properties and also
huge money was spent by the defendants 2 & 3 for the
marriages of plaintiffs 2 & 3. Further, the plaintiffs were
also paid monies by the defendants on 15.10.1988, which
was almost equivalent to the shares taken by the
defendants, considering the monetary value of the
properties as on that date. The receipt of these monies
has been acknowledged by each of the three plaintiffs
separately on a stamp paper. The plaintiffs have
expressly stated that they are not entitled for any share in
the ancestral properties and they have no objection for their
brothers to divide the ancestral properties and dispose
them of. It is also acknowledged by the plaintiffs that
monies have been accepted, which was paid by the
defendants to them out of natural love and affection for
their welfare. It is surprising that the plaintiffs have
deliberately and actively concealed thiss fact in the plaint
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O.S.No.5352/2007
to derive unlawful gains to themselves.
It is further submitted that all the plaintiffs are
married prior to 1991. The plaintiffs were also made
aware that they were not entitled to any share in the
ancestral properties as per the then existing law at the
time of family partition. The defendants were
magnanimous and extended the share in terms of money
considering the value of the properties as on that date.
After satisfying themselves, the pltw on 25.10.1988
endorsed the written family partition(Palupatti) and gave
their no objection for the brothers to divide the
properties among themselves. The plaintiffs have also
endorsed by signing the Palupatti as consenting witnesses,
thereby agreeing for the family partition. Thereafter the
defendants have partitioned the properties and got the
revenue documents transferred to their names. The
plaintiffs having given no objection for division of
properties among their brothers by accepting consideration
amounts to relinquishment. Having relinquished the
rights and also accepting financial considerations, the
plaintiffs are estopped from claiming the property now.
Further, it is submitted that the partition deed that is being
challenged by the plaintiffs was registered on 16.6.2000.
As on that date, the plaintiffs were not entitled for any
share in the ancestral properties as the plaintiffs are
female members and also married prior to 1994, as per the
law then existing on 16.6.2000. The suit schedule
properties for which the plaintiffs are claiming a share by
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O.S.No.5352/2007
way of partition is already a subject matter of a registered
partition deed, registered as No.2423/2000-01 in Book No.I,
Volume 1944, Pages 237 to 247 dated 16.6.2000 in the
Office of Sub Registrar, Kengeri Bangalore. The properties
are divided and the defendants have taken their shares
and also parted with their portions by executing alienation
documents. Hence, the suit is liable to be dismissed."
10. The 4th defendant has filed separate Written statement
reiterating the above statements found in the written statement of
defendant No.1 to 3.
11. Now the present application filed by the defendants U/o VII
Rule 11(d) CPC requesting the court to reject the plaint and dismiss
the suit as not maintainable. The main grounds urged by the
defendant 1 to 3 in their application are :
(1) That the plaintiffs got married much prior to the year of
1991, therefore cannot be considered as co-parcenar U/s.
6-A of the Hindu Succession (Karnataka Amendment) Act.
(2) That there was partition of the schedule properties among
the defendants and the same is evidenced by a registered
partition deed dtd:16-6-2000 i.e., long prior to 20-12-2004.
Hence the Hindu Succession (Amendment )Act bars the
present suit in view of the proviso to Sec.6(1) of the Act.
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O.S.No.5352/2007
12. The plaintiffs who have filed objections to the said
applications have contended that the inconsistent defence taken by
the defendants in their written statement with regard to partition
disentitled them from making such application. All other averments in
the application are denied and prayed for dismissal of the application.
13. After perusing the application filed U/o.VII Rule 11 CPC by the
defendants and also the objections filed by the plaintiffs, this court has
framed the following issue on 23.09.2008:-
"Whether the suit as brought is not maintainable?"
This issue is virtually based on the application filed U/o.VII Rule 11(d)
CPC. The advocate appearing for the defendants has submitted his
written arguments and also relied on a decision of the Hon'ble
Supreme Court reported in (2004) 3 Supreme Court Cases 137, in case
of Sopan Sukhdeo Sable and others V/s Assistant Charity Commissioner
and others. The advocate for the plaintiffs has also submitted his
arguments on the said issue.
14. My finding on the above issue is as per final order for the
following:
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O.S.No.5352/2007
REASONS
15. This is a suit filed by Smt.B.S.Lalitha and two others
against Smt.Lakshmidevamma & four others for a Judgment and
decree of partition and separate possession of the plaintiffs 1/8th
share in the suit schedule properties. There is no dispute as to the
relationship amongst the parties. The plaintiffs and defendants 2 to 5
are the children of late B.M.Seenappa and the 1st defendant. There is
no dispute that the suit schedule properties are the properties of late
B.M.Seenappa. The main contention of the defendants is that the suit
as brought is not maintainable and the plaint has to be rejected for the
reason of Order VIIRule 11(d) CPC. Order VII Rule 11 CPC is a special
provision, which gives power to the court to reject the plaint, if any of
the circumstances mentioned therein, exists. One of the said
circumstance that is invoked in this case is order VII Rule 11(d) of CPC
which reads as under:-
"Order VII Rule 11, the rejection of the plaint:- the plaint
shall be rejected for the following reasons:
a) . . . . . . .
b) . . . . . .
c) . . . . . .
d) Where the suit appears from the statement in the plaint to
be barred by any law".
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O.S.No.5352/2007
16. The contention of the defendants is that there was
already a registered partition dated 16.06.2000 amongst the defendant
Nos 1 to 5, whereby all the suit schedule properties have been divided
by meats and bounds. It is also contended that defendants 1 to 5
have all exercised the right of ownership in respect of their respective
shares and are in possession of the same. It is brought to the notice of
the court that in view of the provisions of Section 6 of the Hindu
Succession (Amendment) Act, 2005, the suit as brought is not
maintainable. To put it in other words the suit has brought is barred in
view of a proviso to Section 6 of Hindu Succession (Amendment) Act,
2005, herein after referred for short as (Act). For the purpose of
brevity it is necessary to mention here the very provision of Section 6
of Hindu Succession Act as amended. The said provision 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;
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O.S.No.5352/2007
(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,
And any reference to a Hindu Mitakshara coparcener
shall be deemed to include a reference to a
daugther 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.
(2) ...............
(3) ..............
(4) ..............
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th
day of December 2004.
Explanation: For the purpose of this section "Partition"
means any partition made by execution of a deed of
partition duty registered under the Registration Act, 1908
(16 of 1908), partition affected by a decree of a Court).
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What is clear from the reading of the above provision is on and
from the commencement of the Hindu Succession (Amendment) Act,
2005, the daughter of a coparcener in a Joint Hindu family governed
by the Mitakshara law, also become the co-parcener by birth in their
own right and in the same manner as the son. The daughter will have
the same right in coparcenary property as the son would have.
Equally the daughters are subject to same liabilities as that of a son.
This is a special status wherein deviating from the tenements of
traditional Hindu law and the provisions of Hindu Succession Act, 1956
given a special status to the daughter of a co-parceners in a Joint
Hindu family governed by the Mitakshara law. However, this special
status given to a daughter is subject to a rider, which is prescribed by
the proviso to Section 6. As per this provision, a daughter along with
the rights and liabilities of a coparcener will not be available if the
properties belonging to the Joint Family were already partitioned prior
to 20th December 2004. The word 'Partition' has been further
explained by way of explanation. The section 6 of the Act by stating
that the partnership means only by means of an execution of deed of
partition duly registered under the Registration Act, 1908. So from the
over all reading of this Section 6 of the Act what follows is: the benefits
under the newly amended Section 6 of the Act would be available to a
daughter of a coparcener only if partition had not taken place by
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O.S.No.5352/2007
means of a registered at any time prior 20th December 2005. Basing
on this proposition of law, the learned advocate appearing for the
defendants has argued that in the present case admittedly there is a
registered partition deed which is dated 16th June 2000, as per which
the properties belonging to the family have been partitioned and
divided by means and bounds amongst defendants 1 to 5. Therefore it
is contended that the suit as brought by the plaintiffs who are the
daughters of late B.M.Seenappa is not maintainable and therefore the
plaint has to be rejected.
17. In a decision reported in (2004) 3 Supreme Court Cases
137 relied on by the learned counsel for the defendants, the following
principles have been laid down:
1) The provision of Order VII Rule 11 CPC could be pressed into
service at any such of the proceedings.
2) While considering the application U/o.VII Rule 11 CPC, it is
only the averments in the plaint are germane; and no
contention taken by in the written statement.
If a meaningful and formal reading of the plaint makes it
manifestly clear that the suit as brought is vexatious or merit less, then
the court will have to invoke the provisions of Section 7 and reject the
plaint. From the perusal of the principles laid down in the decision of
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O.S.No.5352/2007
the Hon'ble Supreme Court what follows is the averments in the plaint
are mainly to be considered to find out whether the suit as brought is
maintainable or whether the plaint has to be rejected.
18. If we scrutinize the materials available on record that is in
particular the plaint, we find that the plaintiffs are not disputing,
denying the partition that had taken place amongst the defendants.
In Para 5 of the plaint at page No.3, it is stated that:-
"On coming to know the illegal partition deed
between the defendants, the plaintiffs got
issued a notice dated 25.4.2007 calling upon
them to partition the schedule properties."
Even in the affidavit filed by the 1st plaintiff in support of the
application filed under Order XXXIX Rule 1 & 2 C.P.C it is stated that:-
"Recently we came to know that the defendants
have partitioned the properties between
themselves, excluding us and without our
knowledge."
The same thing is found in the copy of the legal notice issued on
behalf of the plaintiffs.
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So, from the perusal of the above averments, it is clear that the
plaintiffs were very much aware of the partition that has taken place
in the family of the defendants.
19. The plaintiffs themselves have produced the xerox of the
certified copy of the partition deed dated 16.6.2000 along with other
documents on 28.6.2000. The perusal of this document shows that
on 16.6.2000 the defendants 1 to 5 have entered into partition of the
properties belonged to the family amongst defendants 1 to 5. The
perusal of this document which is produced by the plaintiffs
themselves show that all the plaint schedule properties have been
partitioned by metes and bounds amongst the defendants on
16.6.2000 itself. To be more precise, the Item No.1 of the plaint
schedule was allotted to 1st defendant - Smt.Lakshmi Devamma.
Item No.2 has been allotted to 4th defendant - Rmesh. Item Nos.3
& 4 of the plaint schedule were allotted to 5th defendant -
B.S.Ravindranath. In so far as Item No.5 as described in the plaint is
land in Sy.No. 31 measuring 9 acres 4 guntas situated at
Talagattapura village, Uttarahalli hobli, Bangalore. The perusal of
the partition deed dated 16.6.2000 shows that this land has been
got converted for non-agricultural use as per order in BDS.ALN.SR
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O.S.No.5352/2007
(S)594-96-97 dated 30.5.1997. Sites have been formed. Those
sites have been distributed amongst the defendants as under:-
Site Nos.2, 6 to 8, 11 and 12 allotted to 2nd defendant - B.S.Subhas;
Item Nos.1, 5, 13 & 14 allotted to 3rd defendant - B.S.Jaiprakash; and
Site Nos.3, 4, 9, 10 and 15 allotted to 4th defendant - B.S.Ramesh.
About all these things, the defendants do not dispute and they admit
it. It is true that the averments in the written statement are not to
be looked into at this stage. Even otherwise, the plaint averments,
averments in the affidavit filed in support of the I.A., the legal
notice issued prior to the institution of the suit, all show that the
plaintiffs themselves are stating about the partition. They have not
disputed the genuineness or correctness of the documents. They
only contend that the partition deed was entered into by the
defendants without the knowledge of the plaintiffs. Whatever it may
be, the fact remainsl that the plaintiffs do not dispute the registered
partition deed dated 16.6.2000 which is long prior to 20.12.2004 that
is to the date prescribed by way of proviso to Sec.6 of the Hindu
Succession Act as amended in 2005. As already stated above, the
benefit of newly amended Sec.6 of the Hindu Succession
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O.S.No.5352/2007
(Amendment) Act 2005 as regards the daughter of a coparcener
becoming a coparcener by birth, is not available if the partition of
the family properties had taken place by means of registered
partition prior to 20th December, 2004. Therefore, it cannot be
said that the plaintiffs have cause of action to file the suit and the
suit is clearly barred by the provisions of Sec.6 R/W Proviso and
Explanation of the newly amended Hindu Succession Act, 2005.
20. The other leg of arguments advanced by the defendants is
that the plaintiffs being the daughters of late B.M.Seenappa got
married prior to 1994 and therefore they cannot even claim benefit
under Sec.6 A of Hindu Succession Act (Karnataka Amendment Act).
There is some force in the argument of the learned advocate
appearing for the defendants. At the outset it has to be stated that
the plaintiffs have not stated in their plaint about the dates of their
marriages. But if we go by their age, we find that the plaintiffs are
aged 62 years, 55 years and 50 years respectively. So, necessarily
they must have got married much prior to 1994 (more than 13
years ago, as the suit is of the year 2007). If that be so, the
daughters of a coparcener cannot become coparcener under Sec.6 of
the Karnataka Amendment Act. In this context, we may usefully
refer to the decision of the Hon'ble High Court of Karnataka reported
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O.S.No.5352/2007
in I.L.R 2001 (4) Karnataka, Page 5221, (Tukaram Dhoniba Padatare
& Others .vs. Smt.Savithri and others),wherein it is held as under:-
"Section 6A, (As introduced by Karnataka
Amendment Act of 1994); Daughter as a
coparcener:- The daughter incurs the
disqualification from being a coparcener is the
factum of her marriage prior to 1994. The word
"or" found in Section 6A (d) is disjunctive,
meaning thereby, that a daughter does not
become a coparcener under two separate and
distinct circumstances - one the factum of her
marriage taking place prior to 1994 even if her
marriage had taken place subsequent to 1994
but partition occurring prior to 1994. In either
of the events, she does not become a
coparcener" "
In yet another decision reported in I.L.R 2003 (2) Kar. Page - 1491
(Smt.Gourawwa & Others .vs. Basappa and another), it has been held
as follows:-
"Section 6A: Right of daughters -Married
daughters are not entitled for share in the
property if their marriage was solemnised prior to
the coming into force of Karnataka Amendment
Act, 23/1994. In the instant case, as the
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O.S.No.5352/2007
appellants did not establish the date of their
marriage, as such they are not entitled to share
in the property(smt.Gourawwa & others .vs.
Basappa & another ILR 2003 (2) Kar.1491;
2003 (4) KCCR 2873; 2003 (3) KLJ 263"
Thus, in the light of the above discussions, this court is of the view
that the plaint as brought is barred under both the statutes and
consequently, there is no cause of action also. Consequently, I hold
that the plaint has to be rejected as not maintainable. Accordingly, I
answer Point No.1 in the Negative and Point No. 2 in the Affirmative
and against the plaintiff.
21. POINT NO.3:-For the aforesaid discussions, I hold that the
plaint is liable to be rejected. In the result, I pass the following
ORDER
The application filed by the defendants under Order VII Rule 11 (d) C.P.C is allowed. Consequently, the plaint is rejected and the suit is dismissed as not maintainable.
No order as to costs.
Draw decree accordingly.
21O.S.No.5352/2007 Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this the 29th day of November, 2008.
(D.R.Venkata Sudarshan) XXII Addl. City Civil Judge, Bangalore.
22O.S.No.5352/2007 Appendix Plaintiffs Witnesses:
Defendants Witnesses:
Plaintiffs Exhibits: Defendants Exhibits:
(D.R.Venkata Sudarshan) XXII Addl. City Civil Judge, Bangalore.23
O.S.No.5352/2007 29.11.2008 P-MSM D.1 to 3 & 5 - JNA D.4-JK.
Order on the application filed by the defendants Under Order VII Rule 11 (d) C.P.C pronounced in open court. (Vide separate Judgment) The application filed by the defendants under Order VII Rule 11 (d) C.P.C is allowed. Consequently, the plaint is rejected and the suit is dismissed as not maintainable.
No order as to costs.
Draw decree accordingly.
XXII Addl.City Civil Judge.