Lrs Of Chena Ram & Ors vs Smt. Roopa Devi on 10 March, 2017

[Cites 5, Cited by 1]

Rajasthan High Court - Jodhpur

Lrs Of Chena Ram & Ors vs Smt. Roopa Devi on 10 March, 2017

1. This revision petition is directed against order dated 4.10.16 passed by the Additional District Judge No.1, Jodhpur Metropolitan City, whereby an application preferred by the petitioners/defendants under Order VII Rule 11 CPC, seeking rejection of the plaint stands dismissed.

2. The respondent/plaintiff filed a suit for partition and permanent injunction against the petitioners herein claiming share in the ancestral property, an agriculture land, measuring 26 bighas 2 biswas comprising khasra no.334 situated at village-Sangariya.

3. During the pendency of the petition, the petitioners preferred (3 of 4) [CR-14/2017] an application under Order VII Rule 11 CPC, seeking rejection of the plaint stating that the grand father of the plaintiff, Shri Kana Ram, had expired 100 years back and therefore, she is not entitled to claim right in the ancestral property as co parcener on the strength of the provisions of Section 6 of Hindu Succession Act, 1956 (for short "the Act of 1956") as amended vide Hindu Succession (Amendment) Act, 2005 (for short "the Amendment Act, 2005").

4. The application has been rejected by the court below observing that in the plaint filed, the respondent/plaintiff has not claimed the relief on the strength of the provisions of the Act of 1956 as amended by the Amendment Act, 2005 and therefore, the plaint cannot be rejected invoking the provisions of Order VII Rule 11 CPC.

5. Learned counsel appearing for the petitioners reiterating the stand taken before the court below, submitted that the petitioners have no right to claim share in the coparcenary property inasmuch as, the amendment introduced in Section 6 of the Act of 1956 is prospective and thus, the concluded partition cannot be reopened. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Prakash & Ors. vs. Phulavati & Ors.", AIR 2016 Supreme Court 769.

6. I have considered the submissions of the learned counsel for the petitioners and perused the material on record.

7. It is to be noticed that in the suit filed, the plaintiff has claimed that the land in question was ancestral land in the hands of his grand father late Shri Kana Ram, who survived by three (4 of 4) [CR-14/2017] sons namely, Bhopa Ram, Lala Ram and Gula Ram, however, after death of Shri Kana Ram, inadvertently the land was recorded in the name of eldest son Bhopa Ram alone being karta of HUF.

8. It is true that Section 6 of the Act of 1956, as amended vide Amendment Act, 2005 giving right to the daughters in a coparcenary property in her own right in the same manner as the son, has come into force w.e.f. 9.9.05 and the same does not affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which has taken place before 20th day of December, 2014. But then, even under Section 6 of Hindu Succession Act, 1956, as it existed prior to amendment, the respondent being daughter of Lala Ram s/o Kana Ram, as Class I heir, is not precluded from claiming share in coparcenary property of her father Lala Ram to the extent of his interest therein. In this view of the matter, from perusal of the plaint, in no manner, it can be inferred that it does not discloses any cause of action.

9. In view of the discussion above, the order impugned passed by the court below does not suffer from any illegality, irregularity or jurisdictional error so as to warrant interference by this court in exercise of its revisional jurisdiction.

10. The revision petition is therefore, dismissed.

(SANGEET LODHA)J. Aditya/

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jodhpur