Karnataka High Court
Miss Jameela Nawaz Sharief vs Smt C J Mehboob Munavar Sulthana Alias ... on 1 September, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 05.06.2025
Pronounced on : 01.09.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CIVIL REVISION PETITION No. 273 OF 2025 (IO)
BETWEEN:
MISS. JAMEELA NAWAZ SHARIEF
D/O LATE ALHAJ C. J. KHADER NAWAZ SHARIEF
AGED ABOUT 41 YEARS
RESIDING AT 106/2, KOGILU LAYOUT
KOGILU, BELLAHALLI CROSS ROAD
YELAHANKA, BENGALURU - 560 064.
... PETITIONER
(BY PROF. RAVI VARMA KUMAR, SENIOR ADVOCATE A/W.,
SRI CHETHAN A. C., ADVOCATE)
AND:
1. SMT. C.J.MEHBOOB MUNAVAR
SULTHANA ALIAS BABY
AGED ABOUT 64 YEARS
W/O SYED YASIN SAHEB
RESIDING AT 4019, HAL II STAGE
1ST MAIN ROAD, DOMLUR
BENGALURU - 560 071.
SRI C.K.JAFFER SHARIEF
S/O LATE ABDUL KAREEM
2
DIED ON 25/11/2018
NOT DELETED IN TRIAL COURT
LRs ALREADY ON RECORD.
2. SMT. ZAREENA KANJI
AGED ABOUT 67 YEARS
W/O LATE ALHAJ KHADER NAWAZ SHARIEF
RESIDING AT 106/2, KOGILU LAYOUT
KOGILU, BELLAHALLI CROSS ROAD
YELAHANKA, BENGALURU - 560 064.
3. SRI C.K.ABDUL REHMAN SHARIEF
AGED ABOUT 42 YEARS
S/O LATE ALHAJ C.J.KHADER NAWAZ SHARIEF
RESIDING AT 106/2, KOGILU LAYOUT
KOGILU, BELLAHALLI CROSS ROAD
YELAHANKA, BENGALURU - 560 064.
4. SMT. NASREEN JAN
AGED ABOUT 68 YEARS
W/O LATE ALHAJ C.J.ABDUL KAREEM
RESIDING AT 106/2, KOGILU LAYOUT
KOGILU, BELLAHALLI CROSS ROAD
YELAHANKA, BENGALURU - 560 064.
5. SRI ABDUL WAHAB SHARIEF
AGED ABOUT 44 YEARS
S/O LATE ALHAJ C.J.ABDUL KAREEM
RESIDING AT 106/2, KOGILU LAYOUT
KOGILU BELLAHALLI CROSS ROAD
YELAHANKA, BENGALURU - 560 064.
6. SMT. UMME KULSUM
AGED ABOUT 42 YEARS
D/O LATE ALHAJ C.J.ABDUL KAREEM
RESIDING AT 106/2, KOGILU LAYOUT
KOGILU BELLAHALLI CROSS ROAD
YELAHANKA, BENGALURU - 560 064.
3
7. SMT. UMME SALMA
AGED ABOUT 35 YEARS
D/O LATE ALHAJ C.J.ABDUL KAREEM
RESIDING AT 106/2, KOGILU LAYOUT
KOGILU, BELLAHALLI CROSS ROAD
YELAHANKA, BENGALURU - 560 064.
8. SMT. ZAHEERA JABEEN SULTHANA
AGED ABOUT 67 YEARS
W/O DR. ABDUL WAHEED
RESIDING AT 25/2, 5TH CROSS
BORE BANK ROAD, BENSON TOWN
BENGALURU - 560 046.
... RESPONDENTS
(BY SRI ARJUN DEV B.Y., ADVOCATE FOR R1;
R2 TO R8 ARE SERVED)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF THE CIVIL PROCEDURE CODE 1908, PRAYING TO SET
ASIDE THE ORDER DATED 22.02.2025 ON IA (IA NOT NUMBERED
BY TRIAL COURT) UNDER ORDER 7 RULE 11 (a) AND (d) R/W
SECTION 151, CPC, 1908 IN OS.NO.25891/2016 PASSED BY THE
74TH ADDL. CITY CIVIL AND SESSIONS JUDGE, (CCH-75) MAYO
HALL BENGALURU AND ETC.,
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.06.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
4
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question an order
dated 22-02-2025 passed by the 74th Additional City Civil and
Sessions Judge, Bengaluru on I.A. filed in O.S.No.25891 of 2016
rejecting the application filed by the petitioner/defendant No.4
under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure
seeking rejection of the plaint.
2. Heard Prof. Ravivarma Kumar, learned senior counsel
appearing for the petitioner and Sri Arjun Dev B.Y., learned counsel
appearing for respondent No.1.
3. The facts, in brief, germane are as follows: -
Before embarking upon consideration of the case on its
merits, I deem it appropriate to notice the main protagonists in the
lis. The petitioner is the granddaughter of late C.K. Jaffer Sharief, a
Union Minister and Member of Parliament for many years. Late
5
C.K. Jaffer Sharief married to one Smt. Amina Bie and they had
four children from the wedlock. The present petitioner is the
daughter of one Khader Nawaz Sharief who had pre-deceased his
parents. A suit is filed by the 1st respondent/plaintiff seeking
partition of the properties owned by her mother Smt. Amina Bie
after her death on 10-12-2008. In the said suit, the petitioner/4th
defendant filed an application under Order VII Rule 11(a) and (d) of
the CPC on the ground that Mohammedan law recognizes implied
renunciation of the claim if there is ceasing or desisting to the
property from the hands of the claimant who would be barred from
prosecuting the claim before any Court of law. In that pursuit, an
application as observed hereinabove, comes to be filed under Order
VII Rule 11(a) and (d) of the CPC which comes to be rejected by
the concerned Court holding that it is a matter of trial as to whether
the petitioner has given up the rights impliedly or directly. The
other issue on which the Court holds is with regard to limitation, as
limitation being pure question of law and fact.
4. The learned senior counsel Prof. Ravivarma Kumar would
vehemently contend that the 1st respondent/plaintiff who has now
6
instituted the suit for partition cannot do so under Mohammedan
law. It is not a right that would be subsisting, as that right the
plaintiff has lost by renunciation of her claim in the property. Unlike
the Hindu Succession Act, the learned senior counsel would
contend, that renunciation in Mohammedan law need not be direct,
it can be implied also. He would further contend that the question
of limitation in the case at hand is a threshold bar for entertainment
of the suit itself, as the mother of the plaintiff dies on 10-12-2008.
The properties are partitioned. After the partition of the properties
the subject suit is instituted on 19-09-2016 seeking partition of the
properties already partitioned. Therefore, there is a delay of 7
years and 9 months in filing the suit as against the limitation of
three years from the cause of action being arisen i.e., on the date
of death of the mother of the plaintiff on 10-12-2008. In all, he
would contend that the application filed under Order VII Rule 11(a)
& (d) ought not to have been rejected but allowed.
5. Per contra, the learned counsel appearing for the 1st
respondent/plaintiff, the only contesting respondent, would
vehemently refute the submissions contending that there is no
7
warrant of interference with the order passed by the concerned
Court, as the issue of limitation which is projected as a threshold
bar by the petitioner, is a pure question of law and fact and
renunciation under Mohammedan law would also require evidence
as to whether it was tacit, direct or implied. He would thus seek
dismissal of the petition and the trial be permitted to be proceeded
further.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The relationship between the main protagonists is as
narrated hereinabove. The plaintiff/1st respondent is the daughter
of Smt. Amina Bie who died on 10-12-2008. The plaintiff institutes
the suit on 19-09-2016. After issuance of notice, the petitioner
herein appears and files an application under Order VII Rule 11 of
the CPC seeking dismissal of the suit, on the ground that succession
in Mohammedan Law, as interpreted by different High Courts,
foundations upon renunciation of right qua the claim to the
8
property. The concerned Court, rejects the application on the
ground that whether the plaintiff has renunciated her right or given
up her right is a matter of evidence and the plea of limitation is
always a mixed question of law and fact. The concerned Court has
held as follows:
"REASONS
8. This is a suit filed by plaintiff against the defendants
seeking the relief of partition and separate possession in
respect 'C' schedule properties seeking her 1/6th share.
Wherein the suit has been filed in the year 2016. Pursuance
to issuance of suit summons, the defendants have appeared
and have contested the matter by filing written statement.
Defendants No.1 to 8 have filed written statement. On the
basis of the pleadings, issues have been framed. The order
sheet would show that even plaintiff has given evidence by
way of chief-examination and she has been partly cross-
examined. When the stage of the case was for further cross-
examination, the defendant No.4 has come up with this
application; i.e., u/O VII Rule 11 (a) & (d) r/w Sec. 151 of
CPC seeking to reject the plaint.
9. In nutshell, the case of the plaintiff is that, with
deep respect that the cause of action on 24.01.1999 when
Alhaj.C.J. Abdul Khader died and his mother Hajiana Amina
Bie inherited share in the schedule 'B' property owned by
him, on 10.2.2008 when Jajiana Amina Bie died and the
plaintiff and defendants inherited undivided shares, right,
title, interest and claim in the schedule properties and
defendants No.5, 6, 7 and 8 being beneficiaries therein too in
view of the demise of the spouse and father of them
respectively on 29.01.1999 and subsequently on 2.8.2016
when the plaintiff and Ninth defendant vide notice demanded
a partition of the schedule properties by metes and bounds
and delivery to them of their respective shares therein and
when the defendants No.1 to 8 failed to comply with the said
demand to effect a division by metes and bounds of the
9
aforesaid schedule properties and the defendants failed to
also reply to the said notice of demand in the city of
Bengaluru within the jurisdiction of this court, There is thus
no bar of limitation that operates against the institution of
this suit. The defendant No.4 has not made out a case for
rejection of plaint and is urging legal contentions of an
untenable and unsustainable nature with the strong hope
that they may strike luck with an order of rejection. The
plaint averments establish and make out a valid and tenable
cause of action and the same is prima facie established by
the plaint averments. The IA is replete with suppressio veri
and suggestio false and also with bald statements and is not
supported by any documentary material. With deep respect
that at the time of dealing with an IA u/O VII Rule 11 of CPC,
when the issues raised are a mixed question of law and fact,
the same are required to be considered at the time of final
disposal of the case, on full-fledged trial.
10. 4th Defendant is contending that, her grandmother
Amina Bie died on 10.12.2008. The plaintiff filed the suit on
19.9.2016 and therefore the suit has been filed 7 years 9
months after the death of Amina Bie. The privy council in
Hurmut-ool-nissa Begum v/s Allahdia Khan decided in 1871
held that as per Mohammedan law there can be a renouncing
of the right to inherit which can be implied by ceasing or
desisting from prosecuting a claim maintainable against
anther. The delay in filed this suit after the death of Amina
Bie it can be inferred that the plaintiff has renounced her
right to inherit her mothers properties. The suit is governed
by Article 113 of the Limitation Act, 1963 and the suit ought
to have been filed within 3 years of the date of death of
Amina Bie: i.e., within 10.12.2011. Therefore the suit is
barred by limitation.
11. It is settled principle of law that, while considering
the application U/0.7 Rule 11 of CPC, the Court has to take
into consideration only the averments of the plaint and not
the defence put forth by the defendant. When such is the
position of law, I am of the view that, having regard to the
cause of action stated in the plaint, the suit cannot be
dismissed on the count of limitation.
10
12. 4th Defendant contends that, there is no cause of
action for the suit. In para No.22 of the plaint, the plaintiff
has stated about the cause of action to the suit. When such
is the case, the contention of the 4th defendant that, there is
no cause of action for the suit and the plaint is to be rejected
due to want of cause of action, is not sustainable.
13. In this case, the plaintiff produced documents. But
on the count of 4th defendant is granddaughter of Amiona Bie
and it is contention of defendant No.4 that the suit is
governed by Article 113 of the Limitation Act, 1963 and the
suit ought to have been filed within 3 years of the date of
death of Amina Bie; i.e., within 10.12.2011. Therefore the
suit is barred by limitation.
14. Perusal of the record, it is clear that the parties
are Mohammedan and this suit is a partition suit. So,
whether the plaint has to be rejected as being barred by the
Mohammedn Law and by the Limitation Act, 1963, it requires
trial and perusal of the record. Here in this case the plaintiff
claiming the relief of partition and separate possession in
respect 'C' schedule properties seeking her 1/6th share
against the defendants. The perusal of the documents
produced by the plaintiff itself explain everything and no
where in the document does it imply or state that the
plaintiff is guilty of causing undue harassment to the
defendants, Perusal of the records, it clearly goes to show
that the parties are Mohammedan.
15. I have relied on the citation reported in Special
Leave to Appeal No. 19018/2022 between Gurdev Singh u/s
Harvinder Singh. Wherein it is held as follows:-
'Code of Civil Procedure, 1908; Order VII Rule 11
Rejection of Plaint The case on behalf of the petitioner is
that the plaintiff is not entitled to any relief in the suit. The
aforesaid cannot be a ground to reject the plaint at the
threshold in exercise of powers under Order 7, Rule 11
CPC.'
I have perused the above said citation. With due respect it is
stated that the facts and circumstances of the present case
are aptly applicable to the facts and circumstances of the
11
cases of above cited decision. In view of my aforesaid
findings on fact, I am of the view that, 4th defendant has
failed to establish any of the grounds stated u/O VII Rule 11
of CPC for rejection of plaint. I have perused the above
rulings of the advocate for the defendant No.4. The above
rulings of the advocate for the defendant No.4 not applicable
to the present case in hand and the facts and circumstances
of above ruling are entirely different and defences taken by
the defendant No.4 cannot be acceptable at all. In view of
the above, I answer the point for consideration in Negative
and pass the following:-
ORDER
IA filed by 4th defendant u/0 VII Rule 11 (α) & (d) r/w Sec.151 of CPC is rejected.
No order as to costs."
It is this order that has driven the petitioner to this Court in the subject petition.
8. The learned senior counsel for the petitioner is on the premise that the plaintiff has kept quiet for close to 8 years, after the death of Amina bie. from whom the petitioner is claiming partition. Since the plaintiff has kept quiet for 8 years, she has relinquished/renunciated/given up her right and therefore, the plaint ought to have been rejected. He would place reliance upon the judgments of the Privy Council and the judgment of the Apex Court following the judgment of the Privy Council. The Privy Council 12 in the case of MUSSUMUT HURMUT-OOL-NISSA BEGUM v.
ALLAHDIA KHAN AND HAJEE HIDAYAT1, has held as follows:
".... .... ....
Their Lordships think it of the utmost importance that those who have thus sanctioned a long possession should not be allowed lightly to disturb it, or to escape from those legitimate inferences and presumptions which on a conflict of evidence arise from their own acts and conduct.
They may further remark that according to the Mahomedan Law there may be a renunciation of the right to inherit, and that such a renunciation need not be express but may be implied from the ceasing or desisting from prosecuting a claim maintainable against another. Their Lordships do not say that in this case the point was not taken in the Court below, the acts and omissions of the respondent can be taken to afford an implication of actual renunciation; but they do say that having before them a case in which there is very weak and suspicious evidence in favour of the title, and evidence on the other side conflicting with it, which is not of a stronger character, notwithstanding the apparent respectability of some of the witnesses called for the Defendant, they have to choose between the case for the Plaintiff corroborated merely by those slight inferences which arise from the depositions already considered; and the case for the Defendant, corroborated by the very strong presumptions arising from the conduct and acts of the respondent.
They have already stated that in their opinion the Sudder Court has given more effect than ought to be given to the proceedings in the suit of 1832; they think that that Court has not given sufficient weight to the presumptions arising from the Respondent's conduct. And therefore, though unwilling, even when there is a conflict between the two Courts below, to disturb the final finding on an issue of fact, they feel bound to say that in their judgment the Respondent has failed to 1 (1871) 17 WRPC 108 13 establish the title upon which he sued, and that therefore, the Zillah Judge was right in dismissing the suit.
The result will be that their Lordships will humbly advise Her Majesty to allow this appeal, to reverse the decree of the Sudder Court, and to order that in lieu thereof a decree may be made dismissing the appeal from the decree of the Zillah Judge to that Court with costs. The appellant must also have the costs of the appeal".
(Emphasis supplied) The Privy Council holds that according to Mohammedan law, there will be a renunciation of a right to inherit and that such a renunciation need not be express but may be implied, from ceasing or desisting from prosecuting a claim maintainable against another.
The acts and omissions of a claimant can be taken to afford an implication of actual renunciation. Taking cue from the observations of the Privy Council, the learned senior counsel would submit that mere keeping quiet for 8 years itself is implied renunciation of claim over the properties.
9. The Apex Court in the case of GULAM ABBAS v. HAJI KAYYUM ALI2, while approving the aforesaid dicta of the Privy Council, has held as follows:
2(1973) 1 SCC 1 14 ".... .... ....
7. Sir Roland Wilson, in his "Anglo Mohamadan Law" (p. 260, para 208) states the position thus:
"For the sake of those readers who are familiar with the joint ownership of father and son according to the most widely prevelant school of Hindu Law, it is perhaps desirable to state explicitly that in Mohammedan, as in Roman and English Law, nemo estheresviventis.........a living person has no heir. An heir apparent or presumptive has no such reversionary interest as would enable him to object to any sale or gift made by the owner in possession; See Abdul Wdhid, L.P. 12 I.A., 91, and 11 Cal 597 (1885) which was followed in Hasan Ali, 11 All 456, (1889). The converse is also true: a renunciation by an exepectant heir in the lifetime of his ancestor is not valid, or enforceable against him after the vesting of the inheritance."
This is a correct statement, so far as it goes, of the law, because a bare renunciation of expectation to inherit cannot bind the expectant heir's conduct in future. But, if the expectant heir goes further and receives consideration and so conducts himself as to mislead an owner into not making dispositions of his property inter vivos the expectant heir could be debarred from setting up his right when it does unquestionably vest in him. In other words, the principle of estoppel remains untouched by this statement.
8. As the Madras Full Bench pointed out, the subject was discussed more fully in Ameer Ali "Mohammedan Law" (Vol. II) than elsewhere. There we find the reason for or the object underlying the rule. It is that there is nothing to renounce in such a case because an expectancy remains at most before it has materialized only an "inchoate right". It is in this light that the following observations in Hurmoot-Ool-Nisa Begum v. Allahdia Khan, [(1871) 17 WRPC 108] is explained by Ameer Ali:
"According to the Mohammedan Law the right of inheritance may be renounced and such renunciation need not be express but may be implied 15 from the ceasing or desisting from prosecuting a claim maintainable against another."
9. Ameer Ali explained, citing an opinion of the law officers, given in Khanum Jan v. Jan Bibi: [(1827) 4 SDA Reps 210] "Renunciation implies the yielding up of a right already vested, or the ceasing or desisting from prosecuting a claim maintainable against another. It is evident that, during the life-time of the mother the daughters have no right of inheritance and their claim on that account is not maintainable against any person during her lifetime. It follows, therefore, that this renunciation during the mother's lifetime of the daughters' shares is null and void it being in point of fact giving up that which had no existence."
10. In view of the clear exposition of the reason for the rule contained in the authorities relied upon by the Full Bench of the Madras High Court in Asa Beevi case, we think that it described, by oversight, a rule based on the disability of a person to transfer what he has not got as a rule of prohibition enjoined by Mohammedan Law. The use of the word "prohibited" by the Full Bench does not really bring out the object or character of the rule as explained above.
11. It may be mentioned here that Muslim Jurisprudence, where theology and moral concepts are found sometimes mingled with secular utilitarian legal principles, contains a very elaborate theory of acts which are good (because they proceed from "hasna"), those which are bad (because they exhibit "qubuh"), and those which are neutral per se. It classifies them according to varying degrees of approval or disapproval attached to them (See: Abdur Rahim "Mohammedan Jurisprudence" p. 105). The renunciation of a supposed right, based upon an expectancy, could not, by any test found there, be considered "prohibited". The binding force in future of such a renunciation would, even according to strict Muslim Jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part. In other words, the principle of an equitable estoppel, far from being opposed to any principle of Muslim Law will be found, on investigation, to be completely in consonance with it.
1612. As already indicated, while the Madras view is based upon the erroneous assumption that a renunciation of a claim to inherit in future is in itself illegal or prohibited by Muslim Law, the view of the Allahabad High Court, expressed by Suleman C.J. in Latafat Hussain case while fully recognising that "under the Mohammedan Law relinquishment by an heir who has no interest in the lifetime of his ancestor is invalid and void", correctly lays down that such an abandonment may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued. After considering several decisions, including the Full Bench of the Madras High Court in Asa Beevi case Suleman C.J. observed at p. 575:
"The question of estoppel is really a question arising under the Contract Act and the Evidence Act, and is not a question strictly arising under the Mohammedan Law."
He pointed out (at pages 575-576):
"It has been held in this Court that contingent reversioners can enter into a contract for consideration which may be held binding on them in case they actually succeed to the estate: See 19 ALJ 799, and 21 ALJ 235. It was pointed out in 24 ALJ 873, at pp. 876-77, that although a reversionary right cannot be the subject of a transfer, for such a transfer is prohibited by Section 6, TP Act, there was nothing to prevent a reversioner from so acting as to estop himself by his own conduct from subsequently claiming a property to which he may succeed. Among other cases reliance was placed on the pronouncement of Their Lordships of the Privy Council in 40 All 487, where a reversioner was held bound by a compromise to which he was a party."
13. Incidentally, we may observe that, in Mohammad Ali Khan v. Bisar Ali Khan, [AIR 1928 Oudh 67] the Oudh Chief Court has relied upon Hurmoot-Ool- Nisa Bagum case to hold that "according to Mohammedan Law there may be renunciation of the right to inheritance and such renunciation need not be express but may be implied from the ceasing or desisting from prosecuting a claim maintainable against another".
(Emphasis supplied) 17 The Apex Court follows the Privy Council while holding that there can be implied renunciation.
10. It is settled principle of law that for an application under Order VII Rule 11 of the CPC what is required to be noticed is the plaint averments and not the defense put up by the contesting defendants. Therefore, the relevant plaint averments are necessary to be noticed. The family tree of late C.K. Jaffer Sharief is as follows:
The plaintiff basing her right upon being the daughter of Smt. Amina Bie files the suit. Averments at para-2 of the plaint depict 18 that the parties to the lis are governed by Hanafi School of Mohammedan law with regard to matters of succession and inheritance. Paragraphs 6, 10, 15, 21 and 22 of the plaint read as follows:
".... .... ....
(6) Plaintiff additionally submits that Alhaj C.J.Khader Nawaz Sharief expired on 20/04/1999, Hajiana Amina Bie followed him on 10/12/2008 and the other son of the First Defendant and sibling of the Plaintiff and the Ninth Defendant, passed away on 20/4/2009. All the deceased members of the family of the First Defendant died intestate. The survivors of the immediate family of the First Defendant as on date are the First Defendant herein, the Plaintiff and the Ninth Defendant.
.... .... ....
(10). Plaintiffs submit that as determined by the Table of Sharers the following persons in accordance with the Hanafi Law of Inheritance would be the natural heirs and next of kin of the deceased Alhaj C.J.Khader Nawaz Sharief and the respective shares of each of them is indicated against his/her name hereunder:
(a) Father - C.K. Jaffer Sharief - 1/6th share,
(b) Mother - Hajiana Amina Bie - 1/6th share,
(c) Wife - Zareena Kanji - 1/8th share,
(d) Son - C.K.Abdul Rehman Sharief- 13/36th share &
(e) Daughter - Jameela Nawaz Sharief - 13/72th share.
.... .... ....
(15) That as the aforesaid Hajiana Amina Bie died intestate, her disposable estate too, devolved in accordance with the Table of Share and Residuaries under the Hanafi Law of Inheritance as applicable to Sunni Muslims.
.... .... ....19
(21) That the plaintiff herein in view of what is stated herein supra thus has 1/16th undivided share, right, title, interest, claim in the Schedule Properties. The Plaintiff in view of her advancing age and poor health and as she desires to settle her properties in an effective manner and most of all as she desires to enjoy her respective share in the Schedule Properties in severalty without any manner of hindrance or obstruction from the other co-owners, desires that a partition by metes and bound of the Schedule Properties be effected and she be given her ascertained and divided share therein. For securing the division of the Schedule Properties by metes and bounds and delivery of their respective shares to them the Plaintiff and Defendant No.9 as stated herein supra had called upon the Defendants Nos. 1 to 8 herein to effect a partition of the same by metes and bounds and for delivery to them of their respective shares therein. The Defendants Nos. 1 to 8 showed absolutely no inclination to do so and the Plaintiff and Defendant No.9 were thus constrained to call upon the Defendants to do so vide a Legal Demand Notice issued through their Legal Counsel Messrs. Rego & Rego, Advocates, N-509, Manipal Centre, # 47/73, Dickenson Road, Bengaluru-560042. The Defendants despite receipt the said Notice have failed to effect a partition of the Schedule Properties. The Plaintiffs are therefore constrained to bring the above suit. Hence, the suit.
(22) That the CAUSE OF ACTION for the suit arose on 24-01-1999 when Alhaj C.J. Abdul Khader expired and his mother Hajiana Amina Bie inherited share in the Schedule "B"
Properties owned by him, on 10-02-2008 when Hajiana Amina Bie expired and the Plaintiff and Defendants herein inherited undivided shares, right, title, interest and claim in the Schedule Properties and Defendants Nos. 5, 6, 7 and 8 being beneficiaries therein too in view of the demise of the spouse and father of them respectively on 29-01-1999 and subsequently on 2-08- 2016 when the Plaintiff and 9th Defendant vide Notice issued through Messrs. Rego & Rego, Advocates demanded a Partition of the Schedule Properties by metes and bounds and delivery to them of their respective shares therein and when the Defendants 1 to 8 failed to comply with the said demand to effect a division by metes and bounds of the aforesaid Schedule Properties and the Defendants failed to also reply to the said Notice of Demand in the City of Bengaluru within the jurisdiction of this Hon'ble Court."
20Paragraph-6 narrates that Amina Bie died on 10-12-2008. The persons in whose names the properties subsisted had died intestate. The property was then subject matter of partition and who gets what is as detailed at paragraph 10 of the plaint, again in terms of Hanafi School of law of inheritance. Paragraph-15 notices the death of Amina Bie. Paragraph 22 is where cause of action is narrated. The notices issued in the year 2016 seeking partition of the property is what forms the cause of action. Therefore, the concerned Court rejects the application filed by the petitioner under Order VII Rule 11 of the CPC holding it to be a mixed question of law and fact.
10. I do not find any error in the order passed by the concerned Court quoted supra, as in a suit for partition, the Apex Court holds that an application under Order VII Rule 11(a) and (d) of the CPC would not become entertainable, as it would always be a matter of evidence. The Apex Court in the case of GEETHA v.
NANJUNDASWAMY3, has held as follows:
32023 SCC OnLine SC 1407 21 "7. In simple terms, the true test is first to read the plaint meaningfully and as a whole, taking it to be true.
Upon such reading, if the plaint discloses a cause of action, then the application under Order VII Rule 11 of the CPC must fail. To put it negatively, where it does not disclose a cause of action, the plaint shall be rejected.
8. Following this clear principle, we will now consider the averments made in the plaint. The relevant portions of the plaint are as follows:
"The plaintiffs submit that the said joint family of late Muniventkata Bhovi was in the habit of raising finance whenever it was needed on the strength of the said land in survey number 76/1 later renumbered as 76/2 by executing nominal sale deeds and used to clear the same and used to get necessary reconveying documents... the same habit continued even after the death of late Munivenkata Bhovi by his wives... the said landing survey number 76/2 always continued to be and is in possession of the joint family of the plaintiffs...
The plaintiffs submit that many times even after clearing the debts due to the said financiers, there was reconveyance deeds or release deeds in favour of the plaintiffs joint family in its favour since they had immense confidence in Karibasappa's family and there was no trouble regarding their joint possession of the said joint family properties...
The plaintiffs submit that the attitude of defendants 1 to 3 towards plaintiffs' welfare became disinterested and they started neglecting them ... some of the plaintiffs tried to make the defendants 1 to 3 to take some steps ... the said defendants 1 to 3 advised them and other plaintiffs to have patience as lot of documents and revenue entries have to be updated before dividing the suit schedule properties and give separate possession to each sharers including plaintiffs ...
The plaintiffs submit that the said joint family has no debts and the suit schedule properties are available for partition ...22
Plaintiffs 1 to 6 submit that instead of partitioning the said suit schedule properties among the plaintiffs and the defendants 1 to 3, the said defendants have started making efforts to alienate the same to others in the month of May 2005 ... they even made it clear that the heirs of Karibasappa and themselves will create all sorts of problems to the plaintiffs for daring to question them and they claimed that several documents have been created in respect of the suit schedule properties and revenue records and built up in the names of their own man and they will cause all sorts of obstructions to the plaintiffs in realising their shares and even create third party interests therein and induct others into the possession thereof..."
9. It is apparent from the above that, the Plaintiffs specifically pleaded that various sales were executed through 'nominal sale deeds', but were not acted upon. The plaint of the joint family property specifically addressed the issue of the revenue records and averred that although the RTC records stood in the name of the financiers, the joint family continued to be in undisrupted possession of the property.
10. If the statements in the plaint are taken to be true, the joint family properties may enure to the benefit of its members and they may well be available for partition. This is a matter of trial, the result of which would depend upon the evidence adduced by the Plaintiff. At this stage, we are not concerned with the correctness of the averments, except to state that the Plaintiffs have the carriage of the proceedings, and have to discharge the heavy burden of proving their case. In so far as the application under Order VII Rule 11 of CPC is concerned, this Court will proceed only that far, to examine whether the plaint discloses a cause of action, and no further.
11. The High Court committed an error by examining the merits of the matter. It pre-judged the truth, legality and validity of the sale deed under which the Defendants No. 4 to 14 claim title. This is not to say that the Plaintiffs have any less burden to prove their case or even that their case is probable. Simply put, the High Court could not have anticipated the truth of the averments by assuming that the alleged previous sale of the property is complete or that it has been acted upon. The 23 approach adopted by the High Court is incorrect and contrary to the well-entrenched principles of considering an application under Order VII Rule 11, CPC. Under these circumstances, we set aside the judgment and the order passed by the High Court and dismiss the application under Order VII Rule 11, CPC, and restore the suit even with respect to properties mentioned under Schedule A of the Plaint.
12. There is yet another reason why the judgment of the High Court is not sustainable. In an application under Order VII Rule 11, CPC a plaint cannot be rejected in part. This principle is well established and has been continuously followed since the 1936 decision in Maqsud Ahmad v. Mathra Datt & Co.4. This principle is also explained in a recent decision of this Court in Sejal Glass Ltd. v. Navilan Merchants (P) Ltd.,5 which was again followed in Madhav Prasad Aggarwal v. Axis Bank Ltd.6 The relevant portion of Madhav Prasad (supra) is extracted hereinunder:
"10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power under Order 7 Rule 11(d) CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in Sejal Glass Ltd. [Sejal Glass Ltd. v. Navilan Merchants (P) Ltd., (2018) 11 SCC 780 : (2018) 5 SCC (Civ) 256] is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the Director's Defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against Defendant 1 company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be 24 rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) 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.
...
12. Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) CPC on account of non-compliance with mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part..."
(emphasis supplied) (Emphasis supplied)
11. The learned senior counsel's submission is that the suit is barred by limitation as well, as a cause of action that arose in the year 2008 is sought to be agitated in the year 2016, seeking partition of the property. Limitation as held by the Apex Court is always a mixed question of law and fact, particularly in the cases of the kind that is before the Court. It is undoubtedly, a mix question of law and fact. The Apex Court in the case of P.KUMARAKURUBARAN v. P.NARAYANAN4, has held as follows:
"12.1. However, we are of the considered view that the issue as to whether the appellant had prior notice or reason to be aware of the transaction at an earlier point of time, or 4 2025 SCC OnLine SC 975 25 whether the plea regarding the date of knowledge is credible, are matters that necessarily require appreciation of evidence. At this preliminary stage, the averments made in the plaint must be taken at their face value and assumed to be true. Once the date of knowledge is specifically pleaded and forms the basis of the cause of action, the issue of limitation cannot be decided summarily. It becomes a mixed question of law and fact, which cannot be adjudicated at the threshold stage under Order VII Rule 11 CPC. Therefore, rejection of the plaint on the ground of limitation without permitting the parties to lead evidence, is legally unsustainable.
12.2. In this regard, we may usefully refer to the following decisions of this Court, which have consistently held that when the question of limitation involves disputed facts or hinges on the date of knowledge, such issues cannot be decided at the stage of Order VII Rule 11 CPC:
(i) Daliben Valjibhai v. Prajapati Kodarbhai Kachrabhai7 "10. The First Appellate Court came to the conclusion that the defendants made an application for correcting the revenue records only in the year 2017 and on the said application the Deputy Collector issued notice to the plaintiffs in March 2017 and that was the time when the plaintiffs came to know about the execution of the sale deed. It is under these circumstances that the suit was instituted in the year 2017. While the High Court came to the correct conclusion that under Article 59 of the Limitation Act, a suit can be instituted within 3 years of the knowledge, it proceeded to return a finding that in cases where the document is registered, the knowledge must be presumed from the date of registration.
11.
12. Further, in Chhotanben v. Kirtibhai Jalkrushnabhai Thakkar where again a suit for cancellation of sale deed was opposed through an application under Order 7 Rule 11, on ground of limitation, this Court specifically held that limitation in all such cases will arise from date of knowledge. The relevant portion is as follows:
"15. What is relevant for answering the matter in issue in the context of the application under Order 7 Rule 11(d) CPC, is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order 7 Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18-10- 26 1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellant- plaintiffs is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers, original Defendants 1 and 2, in favour of Jaikrishnabhai Prabhudas Thakkar or Defendants 3 to 6. They acquired that knowledge on 26-12-2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original Defendants 1 and 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (½) portion of the land so designated towards their share. However, when they realised that the original Defendants 1 and 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the trial court opined that it was a triable issue and declined to accept the application filed by Respondent 1- Defendant 5 for rejection of the plaint under Order 7 Rule 11(d). That view commends to us.
...
19. In the present case, we find that the appellant- plaintiffs have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original Defendants 1 and 2 by keeping them in the dark about such execution and within two days from the refusal by the original Defendants 1 and 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the trial court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order 7 Rule 11(d) CPC."
(emphasis supplied)
13. In view of the above, there was no justification for the High Court in allowing the application under Order 7 Rule 11, on issues that were not evident from the plaint averments itself. The High Court was also not justified in holding that the limitation period commences from the date of registration itself. In this view of the matter the judgment of the High Court is unsustainable."
(ii) Salim D. Agboatwala v. Shamalji Oddhavji Thakkar8 "11. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy [(2015) 8 SCC 331 : (2015) 4 SCC (Civ) 100], the rejection of plaint under Order 7 Rule 11 is a drastic power conferred on the court to terminate a civil action at the threshold.
27Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order 7 Rule 11.
12. Again as pointed out by a three-Judge Bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar [(2018) 6 SCC 422 : (2018) 3 SCC (Civ) 524], the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.
13...
14. But a defendant in a suit cannot pick up a few sentences here and there from the plaint and contend that the plaintiffs had constructive notice of the proceedings and that therefore limitation started running from the date of constructive notice. In fact, the plea of constructive notice is raised by the respondents, after asserting positively that the plaintiffs had real knowledge as well as actual notice of the proceedings. In any case, the plea of constructive notice appears to be a subsequent invention."
(iii) Shakti Bhog Food Industries Ltd. v. Central Bank of India9 "6. The central question is : whether the plaint as filed by the appellant could have been rejected by invoking Order 7 Rule 11(d) CPC?
7. Indeed, Order 7 Rule 11 CPC gives ample power to the court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation. This position is no more res integra. We may usefully refer to the decision of this Court in Ram Prakash Gupta v. Rajiv Kumar Gupta [(2007) 10 SCC 59]. In paras 13 to 20, the Court observed as follows : (SCC pp. 65-66) "13. As per Order 7 Rule 11, the plaint is liable to be rejected in the following cases:
'(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;28
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9;'
14. In Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, [(2003) 1 SCC 557] it was held with reference to Order 7 Rule 11 of the Code that:
'9. ... the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power ... at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and
(d) of Rule 11 Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage....' (SCC p.
560, para 9).
15. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
16. "The trial court 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, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, [it has to be nipped] in the bud at the first hearing by examining the party searchingly under Order 10 CPC." (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467], SCC p. 468.)
17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487], only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
18. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 Order 7 was applicable.
2919. In Sopan Sukhdeo Sable v. Charity Commr. [(2004) 3 SCC 137] this Court held thus : (SCC pp. 146-47, para 15) '15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.'
20. For our purpose, clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entire plaint. Order 7 Rule 12 mandates where a plaint is rejected, the court has to record the order to that effect with the reasons for such order."
8. On the same lines, this Court in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust [(2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612], observed as follows : (SCC pp. 713-15, paras 10-12) "10. ... It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557], in which, while considering Order 7 Rule 11 of the Code, it was held as under :
(SCC p. 560, para 9) 30 '9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses
(a) and (d) of Rule 11 Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.' It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC 100].
12. It is also useful to refer the judgment in T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467], wherein while considering the very same provision i.e. Order 7 Rule 11 and the duty of the trial court in considering such application, this Court has reminded the trial Judges with the following observation :
(SCC p. 470, para 5) '5. ... 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, (Chapter XI) and must be triggered against them.' It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as 31 observed by Krishna Iyer, J. in the abovereferred decision [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467], it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code."
14. All these events have been reiterated in Para 28 of the plaint, dealing with the cause of action for filing of the suit. Indeed, the said para opens with the expression "the cause of action to file the suit accrued in favour of the plaintiff and against the defendants when the illegal recoveries were noticed and letter dated 21-7-2000 was sent to the defendants to clarify as to how the interest was being calculated". This averment cannot be read in isolation.
....
22. It is well-established position that the cause of action for filing a suit would consist of bundle of facts. Further, the factum of the suit being barred by limitation, ordinarily, would be a mixed question of fact and law. Even for that reason, invoking Order 7 Rule 11 CPC is ruled out. In the present case, the assertion in the plaint is that the appellant verily believed that its claim was being processed by the regional office and the regional office would be taking appropriate decision at the earliest. That belief was shaken after receipt of letter from the Senior Manager of the Bank, dated 8-5-2002 followed by another letter dated 19-9-2002 to the effect that the action taken by the Bank was in accordance with the rules and the appellant need not correspond with the Bank in that regard any further. This firm response from the respondent Bank could trigger the right of the appellant to sue the respondent Bank. Moreover, the fact that the appellant had eventually sent a legal notice on 28-11-2003 and again on 7-1-2005 and then filed the suit on 23-2-
2005, is also invoked as giving rise to cause of action. Whether this plea taken by the appellant is genuine and legitimate, would be a mixed question of fact and law, depending on the response of the respondents."
13. In this backdrop, the approach of the High Court in reversing the well-reasoned order of the trial Court warrants interference. The trial Court had rightly held that the issue of limitation necessitated adjudication upon evidence, particularly in view of the appellant's assertion that the Power of Attorney executed by him did not confer any authority upon his father to alienate the suit property and 32 that the impugned transaction came to his knowledge only at a much later point in time. In such circumstances, the determination of limitation involved disputed questions of fact that could not be summarily decided without the benefit of trial. The High Court, however, proceeded to reject the plaint solely on a prima facie assumption that the suit was barred by limitation, without undertaking any examination as to whether the plea regarding the date of knowledge was demonstrably false or inherently improbable in light of the record. In the opinion of this Court, such an approach amounts to an error of law and constitutes a misapplication of the well- established principles governing the exercise of power under Order VII Rule 11 CPC. For the same reasons, the decisions relied upon by the learned counsel for the respondents are inapplicable, being factually distinguishable.
14. It is also to be noted that the appellant has categorically averred in the plaint that he executed the registered power of attorney in favour of his father solely for the limited purpose of constructing a house and carrying out related activities. There is no express clause authorizing his father to sell the suit property to any person without the appellant's consent and knowledge. Yet, the appellant's father executed a sale deed in favour of his granddaughter, going beyond the scope of the power of attorney, which raises serious doubt about misuse of authority and potential fraud. Such assertions cannot be rejected in the application under Order VII Rule 11 CPC. Accordingly, we are of the view that the plaint discloses a cause of action which cannot be shut out at the threshold. Thus, the trial Court acted within its jurisdiction in refusing to reject the plaint and in holding that the matter ought to proceed to trial. The High Court, while exercising its revisional jurisdiction under Section 115 CPC, ought not to have interfered in the absence of any jurisdictional error or perversity in the trial court's order. Rejecting the plaint where substantial factual disputes exist concerning limitation and the scope of authority under the Power of Attorney, is legally unsustainable."
(Emphasis supplied) 33 In the light of the law laid down by the Apex Court while interpreting Order VII Rule 11(a) and (d) of the CPC, what would unmistakably emerge is, the plea of the petitioner with regard to renunciation of the rights of the plaintiff would undoubtedly require evidence. There can be no qualm about the principles so laid down by the Privy Council or the Apex Court following the judgment of the Privy Council, but it can be only during the trial.
12. Therefore, finding no warrant to interfere with the order passed by the concerned Court, the petition lacking in merit, stands rejected.
Consequently, I.A.No.1 of 2025 also stands disposed.
Sd/-
(M.NAGAPRASANNA) JUDGE BKP CT:SS