Karnataka High Court
Sri B Pavan Kumar vs Smt. B Shamalanath on 2 November, 2020
Bench: Aravind Kumar, Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
RFA. NO.1119/2020
BETWEEN:
1. SRI B. PAVAN KUMAR
S/O. LATE B.S. BADRINATH,
AGED ABOUT 43 YEARS,
R/O. NO. 742, 9TH BLOCK,
NAGARABHAVI, 2ND STAGE,
BENGALURU - 560 072.
2. SMT. SARITHA. B
W/O. SRI. SOMSHEKAR,
D/O. LATE B. S. BADRINATH,
AGED ABOUT 33 YEARS,
R/O. NO.34, KALYANNAGAR,
MAIN ROAD, NAGARBHAVI,
BENGALURU - 560 072.
..APPELLANTS
(BY SRI. S P KULKARNI, ADVOCATE)
AND:
1. SMT. B SHAMALANATH
W/O. LATE B.S. BADRINATH,
AGED ABOUT 66 YEARS,
R/O. NO. 969, 2ND CROSS,
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AECS LAYOUT, KUDLU,
BENGALURU -560 068.
2. TUMKURU DON BOSCO SOCIETY
REPRESENTED BY SRI. FATHER TONY,
CHIRAKAL,
AGED ABOUT 44 YEARS,
PRESIDENT OF TUMKURU DON BOSCO,
SOCIETY,
R/O. KANTEERAYANA PALYA,
DON BOSCO ROAD,
MARALENAHALLI VILLAGE,
TUMAKURU-572 106.
3. SMT. GOWRI PRAKASH
W/O. LATE S. B. SHIVA PRAKASH,
AGED ABOUT 51 YEARS,
R/AT SY. NO. 43/4,
KANTEERAYANA PALYA,
BESIDE DON BOSCO SCHOOL,
MARALENAHALLI VILLAGE,
TUMAKURU-572 106.
4. MR. NIKHIL PRAKASH
S/O. LATE S.B. SHIVA PRAKASH,
AGED ABOUT 26 YEARS,
R/AT SY. NO. 43/4,
KANTEERAYANA PALYA,
BESIDE DON BOSCO SCHOOL,
MARALENAHALLI VILLAGE,
TUMAKURU - 572 106.
....RESPONDENTS
(BY SRI. D.N. NANJUNDA REDDY, SR. COUNSEL A/W SRI.
MAYUR GADIDAM D S., ADVOCATE FOR C/R 3 AND 4))
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THIS RFA IS FILED UNDER SECTION 96 AND ORDER
41 RULE 1 OF CPC., AGAINST THE ORDER DATED
24.07.2020 PASSED ON IA NO.II IS OS NO.430 OF 2019 ON
THE FILE OF THE ADDL. SR. CIVIL JUDGE, TUMAKURU
ALLOWING THE IA NO.II FILED UNDER ORDER VII RULE
11(a) and (d) OF CPC. FOR REJECTION OF THE PLAINT.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This is a plaintiffs' appeal challenging the correctness and legality of the judgment and decree passed in O.S.No.430/2019 whereunder plaint has been rejected under Order VII Rule 11 (a) and (d) of Code of Civil Procedure.
2. Plaintiffs who are the children of Sri B.S.Badrinath and Smt.B.Shamalanath (w/o.B.S.Badrinath) filed a suit O.S.No.430/2019 seeking following reliefs.
a) a partition may be effected among Plaintiff No.1 and 2 and Defendant No.1 by metes and bounds of the suit Schedule A and B -4- properties and put each of the plaintiff of their respective 1/3rd separately and independently and put them into physical possession their respective shares,
b) to declare Sale Deed dated 03.06.1993 (Document No.5) in respect of land bearing Sy.No.43 measuring 3 acres 30 guntas as null and void,
c) defendant No.1 to 4 shall be directed to put Plaintiff No.1 and 2 in possession of their respective shares of 1/3rd each in Schedule A and B Properties,
d) to order for an enquiring into mesne profits under Order 20 Rule 12 CPC from the date of suit,
3. The sum and substance of the contentions raised by the plaintiffs in the suit was to the effect that property measuring 20 acres 30 guntas in Sy.No.43 of Marenahalli Village, Kasaba North Hobli, Tumkur Taluk and District was purchased by Smt.Rajalakshmamma (grandmother of plaintiffs) under a registered sale deed -5- dated 23rd November 1939 and during her life time, she had sold 6 acres under two different sale deeds viz. sale deed dated 4th December 1985 and 19th December 1988 to Mr.Mohammed Sirajuddin and Mr.Mohammed Shamshoddin, Sri K.M.Satish Babu respectively and after she expired on 2nd June 1990, they succeeded to the suit property along with their father. It was contended that their father Sri Badrinath sold 3 acres 30 guntas in favour of Shivaprakash (husband of defendant No.3 and father of defendant No.4) under sale deed dated 3rd June 1993; 10 acres in favour of Mr.Thomas Myladoor under registered sale deed dated 25th April 1995; and 1 acre 6 guntas in favour of Subhasaya under a registered sale deed dated 30th July 2001. It is further stated that Mr.Thomas Myladoor who had purchased 10 acres from plaintiffs' father under the registered sale deed dated 25th April 1995, had executed a gift deed dated 24th January 2006 in -6- favour of second defendant gifting 2 acres of land. Plaintiffs further contended as on the date of selling of suit lands in favour of Sri.Shivaprakash, they were minors but at the time of selling 10 acres of land in favour of Thomas Myladoor, they were majors and their signatures have not been taken in the sale deed and as such said sale is not binding on them. Hence, plaintiffs sought for partition and separate possession of the suit schedule properties.
4. Defendant Nos.3 and 4 filed an application IA-II under Order VII Rule 11 (a) and (d) CPC for rejection of the plaint contending inter alia that there is no cause of action for the suit and what has been pleaded is an illusory cause of action and suit is barred by Section 15 of the Hindu Succession Act.
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5. Learned Trial Judge as noticed herein above, has rejected the plaint allowing the application mainly on the following grounds :
a) The plaintiffs do not have semblance of right over suit schedule properties, as property acquired by a female Hindu, upon her death, devolves on her son/s and daughter. Plaintiffs father was the only son and as such, he was entitled to deal with the property as his own property and his children did not have right over the property;
b) Rajalakshmamma, maternal grand mother of plaintiffs, has executed a registered will dated 13th March 1986 in favour of her only son viz. Badrinath and as such under the will her only son succeeded to the property by inheritance.-8-
c) The plaintiff's claim over schedule 'A' property can be adjudicated in a separate and independent suit.
6. We have heard the arguments of Sri.S.P.Kulkarni, learned counsel appearing for appellants and Sri.Nanjunda Reddy, learned Senior Counsel appearing on behalf of respondents 3 and 4, who are on caveat.
7. Though appeal is listed for admission, by consent of learned Advocates appearing for parties, we have taken up this appeal for final disposal, inasmuch as keeping this appeal pending on the issue of rejection of plaint would be of no avail to either of the parties, inasmuch if a finding is recorded by this Court that order of rejection of this plaint is erroneous, suit ought to be adjudicated on merits and on account of pendency of present appeal, delay should not occur or such delay should not be attributed to the Appellate Court. -9-
8. We are also perforced to observe that issuance of notice to defendants 1 and 2 would not be required inasmuch as they have not contested the order of rejection of the plaint and said order has enured to their benefit. Even if this Court were to accept the contentions of the appellants/plaintiffs, defendants 1 and 2 viz. respondent 1 and 2 would definitely have an opportunity before the trial Court to put forth their case in toto. As such, no notice is ordered on them and taking into consideration the pleadings as laid before the trial Court having been made available to the counsel for the appellants, calling for the records would also not arise.
9. It is the contention of Sri.Kulkarni, learned counsel appearing for the appellants/plaintiffs that learned trial Judge has committed a serious error in rejecting the entire plaint whereunder the plaintiffs have sought for partition in respect of both schedule 'A' and
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'B' properties and prayer of defendants 3 and 4 relates to rejection of plaint in respect of 'B' schedule property only which they have purchased and as such, there could not be any partial rejection of the plaint and plaint having been rejected in its entirety, in the absence of any prayer is erroneous and liable to be set aside. It is further contended that without extending full opportunity to the plaintiffs to put forth their case with reference to schedule 'A' property, trial Court could not have rejected the plaint in respect of schedule 'A' property also. He would also elaborate his submissions by contending that written statement averments has been considered by the learned Trial Court for rejection of the plaint, which is alien to Order VII Rule 11 (a) and
(d) of the Civil Procedure Code. He would further contend that when plaintiffs have alleged fraud, collusion and misrepresentation in the plaint, trial Court could not have rejected the plaint as it is a
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disputed question of fact and trial ought to have been held or in other words, evidence of parties ought to have been recorded. Hence, he has prayed for allowing the appeal by setting aside the order of trial Court. In support of his contentions he has relied upon the following judgments :
1. 2018(5) KCCR 596(D.B) (Kanthamma & Others Vs. N. Ananda Kumar Reddy and Another)
2. AIR 2017 SC 4477 (Sejal Glass Ltd., Vs. Navilan Merchants Pvt.
Ltd.)
3. (2019)7 SCC 158 (Madhav Prasad Aggarwa & Another Vs. Axis Bank Limited & Another)
4. 2015 (5) KCCR 1387 (H.P Chikkarama Reddy and Another Vs.j Smt. Kanthamma & Others)
5. 2017 (5) KCCR 473 (Prameela N Vs. L. Mahadevaiah)
6. 2017(5) KCCR 1029 (H Venkataswamy Reddy and Others Vs. Narayana Reddy & Others)
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7. 2020 (2) KCCR 1518 (Sindhulakshmi Kurup & Others Vs. Sri Manjunatha & Others)
10. Per contra, Sri. Nanjunda Reddy learned senior counsel appearing for respondents 3 and 4 supports the impugned order and he would contend that when plaintiffs do not have any subsisting right over the suit schedule property, rejection of plaint in its entirety by the trial Court is just and correct and he prays for ignoring the finding recorded by the trial Court with regard to the will propounded by them and referred to in the written statement filed by defendants. He would also submit that in the application filed by the defendants 3 and 4 what has been sought for is rejection of the plaint in its entirety, though defendants 3 and 4 are concerned only with schedule 'B' property, inasmuch as plaint cannot be rejected in part. Hence, he seeks for confirming the order under challenge and prays for dismissal of the appeal.
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11. Having heard the learned Advocates appearing for the parties and on perusal of the case papers and after bestowing our anxious consideration to the contentions raised by the learned counsel appearing on both sides, we are of the considered view that following points would arise for our consideration :
1) Whether order of the trial Court rejecting the plaint for reasons set out in the order dated 24th July 2020 is to be sustained, set aside, modified or varied ?
2) What order ?
RE. POINT NO.1
12. As already noticed herein above, property bearing Sy.No.43 measuring 20 acres 30 guntas was purchased by Smt.Rajalakshmamma under a registered sale deed dated 23rd November 1939. During her life time, she had sold 6 acres under two sale deeds viz. 4th
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December 1985 in favour of Mohammed Sirajoddin and Mohammed Shamshoddin and under the sale deed dated 19th December 1988 in favour of one Satish Babu measuring 3 acres each. She expired on 2nd June 1990 leaving behind her only son-Badrinath, who is none other than the husband of defendant No.1 and father of plaintiffs 1 and 2.
13. Aforesaid Sri Badrinath during his life time sold 3 acres 30 guntas in favour of Shivaprakash i.e., the husband of third defendant and father of fourth defendant under a registered sale deed dated 3rd June 1993 to an extent of 3 acres 30 guntas and in favour of Mr.Thomas Myladoor an extent of 10 acres was sold under the registered sale deed dated 25th April 1995 and in association with the first defendant, said Sri Badrinath had sold an other extent of 1 acre 30 guntas on 30th July 2001 in favour of Sri Shubasaya.
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14. The aforesaid Thomas Myladoor in turn had executed a gift deed in favour of the second defendant on 24th January 2006 wherein 2 acres of land was gifted. There is no dispute to these factual aspects and in fact, the plaintiffs themselves in paragraphs 3 and 4 have admitted these facts.
15. As already noticed herein above, plaintiffs have filed a suit for partition and separate possession claiming 1/3rd share in the suit schedule property measuring 14 acres, 10 guntas. Cause of action for the suit which has been pleaded is traceable to paragraph No.9 of the plaint which reads:
"9. The Plaintiffs further submits that, the first cause of action arose in favour of plaintiffs on the dates of execution of Sale Deeds and also when plaintiffs obtained copies of Sale Deeds and recent cause of action arise on 01.08.2019."
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16. Defendants, who appeared on service of suit summons, have filed an application-IA No.II under Order VII Rule 11 (a) and (d) CPC for rejection of the plaint. It is based on said application the order under challenge came to be passed after considering the rival contentions.
17. There cannot be a dispute to the proposition that plaint can be rejected at any stage of the suit if ingredients of Order VII Rule 11 CPC are made out. In fact, no formal application is necessary. It can be done even before registering the plaint also. Power under Order VII Rule 11 CPC can be exercised both at the threshold of the proceedings and in the absence of any statutory restriction at any stage of subsequent proceedings as held by the Hon'ble Apex Court in VITHALBHAI (P) LTD. V. UNION BANK OF INDIA. reported in 2005 (4) SCC 315. While considering the prayer for rejection of the plaint, averments made in the
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written statement would not be taken into consideration. It is only on the basis of the plaint averments, prayer for rejection of plaint requires to be examined. Assertions in plaint must be assumed to be true for purposes of determining real controversy between parties. In other words, plaint cannot be rejected on basis of allegations made by defendants in the written statement. If plaint were to disclose some cause of action, it would suffice for it to survive the onslaught of the prayer for rejection of plaint. Even for examining the plaint as to whether it is barred by any law as contemplated under Order VII Rule 11 (d) CPC, the averments made in the plaint alone is to be looked into and they have to be assumed to be true. It is impermissible to look into pleas raised in the written statement or to any other piece of evidence. For this proposition, catena of judgments can be noticed and it
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would suffice to state the following authorities to support the said view :-
1) AIR 2006 SC 1828 Mayar (H.K.) Ltd. & Ors v.
Owners & Parties, Vessel M.V. Fortune Express & Ors.
2) AIR 2006 SC 3672 Ramesh B. Desai & Ors. v. Bipin Vadilal Mehta & Ors.
3) AIR 2005 SC 363 State of Orissa, v. Debendra Nath Padhi
18. The incidental questions which would arise for consideration are :
i) Whether for considering prayer for rejection of plaint, a formal application is to be filed or not ?
2) Whether Court can suo motu, even in absence of an application for rejection of the plaint, can reject the plaint in exercise of power vested under Order VII Rule 11 of CPC or not ?
19. The answer to this question can be found in the authoritative pronouncement of the Apex court in
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SOPAN SUKHDEO SABLE AND OTHERS Vs. ASSISTANT CHARITY COMMISSIONER AND OTHERS reported in (2004) 3 Supreme Court Cases 137 whereunder it came to be held that under Order VIII Rule 11 of CPC, the trial Court can exercise power at any stage of suit. A duty is cast on the Court to perform its obligation in rejecting the plaint if hit by any of the infirmities indicated in clauses (a) to (d) of Order VII Rule 11 of CPC even without intervention of defendant. It is has been further held:
"10. In Saleem Bhai v. State of Maharashtra it was held with reference to Order VII Rule 11 of the Code 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 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
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deciding an application under clauses (a) and
(d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage."
20. "There is distinction between "material facts" and "particulars". The words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between "material facts" and "particulars" was brought by Scott, L.J. in Bruce v. Odhams Press Ltd. in the following passage : (ALL ER P.294) "The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete
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cause of action; and if any one "material" statement is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology, and in the new is liable to be 'struck out' under R.S.C. Order XXV, Rule 4 (see Philipps v. Philipps); or 'a further and better statement of claim' may be ordered under Rule7.
The function of 'particulars' under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial."
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The dictum of Scott, L.J. in Bruce case has been quoted with approval by this Court in Samant N. Balkrishna v. George Fernandez and the distinction between "material facts"
and "particulars" was brought out in the following terms:
"The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet."
Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage
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when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall"' is used, clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."
20. In the judgment of T.ARIVANDANDAM V. V.SATYAPAL AND ANOTHER reported in AIR 1977 Supreme Court 2421, the Hon'ble Apex Court has held that Court must 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, the trial Court should exercise its power under Order 7 Rule 11
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CPC taking care to see that the ground mentioned therein is fulfilled.
21. These propositions of law referred to herein supra would leave no manner of doubt in our mind that exercise of power under Order VII Rule 11 of CPC by the Courts need not be necessarily at the instance of contesting parties/defendants and if Court finds on purposeful and meaningful reading of plaint that it is without any cause of action or barred by any law or there is no right to sue which survived to the plaintiff, it would be apt and proper to nip at the bud instead of allowing the parties to litigate for which there is no cause of action or barred by law or there being no right to sue available to the plaintiff/s.
22. However, in many a cases it may arise where cause of action pleaded may be real, requiring trial to be conducted or by a clever drafting of plaint, an
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illusory cause of action is sought to be made out. Where such illusory cause of action is tried to be made out and on a searching and on plain reading of the plaint averments disclosing that a clear right to sue does not vest with plaintiff as held by the Apex court in Arivandandam's case, the trial Judge would be a complete answer for throwing out such plaints and such orders of rejection of the plaint would be a complete answer to such suits.
23. Keeping these aspects in mind and contentions raised by Sri.S.P.Kulkarni, learned counsel for the appellants/plaintiffs are examined, it would clearly emerge from the plaint averments that plaintiffs are seeking for partition and separate possession by asserting that on the demise of their grand mother and their father, they had succeeded to the suit schedule properties or in other words, their contention is to the effect that on demise of their paternal grand mother i.e.
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father's mother, they inherited suit schedule property by succession. They have also contended in the suit that their father could not have unilaterally sold the property in favour of defendants after his mother's death, since they also had right in the suit schedule property and as such, sale of suit schedule properties in favour of defendants 3 to 5 is void and not binding on them.
24. As already observed herein above and at the cost of repetition, we may have to notice that undisputedly Smt.Rajalakshmamma, grand mother of plaintiffs, had acquired title to the suit schedule property bearing Sy.No.43 measuring 20 acres 30 guntas by virtue of she having purchased the same under a registered sale deed dated 23rd November 1939. She sold said property to an extent 6 acres during her life time as already observed herein above. She expired on 2nd June 1990. It is thereafter plaintiffs' father
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Mr.Badrinath had sold remaining properties under three registered sale deeds 3rd June 1993, 25th April 1995 and 30th July 2001 in favour of Sriyuths Shivaprakash, Thomas Myladoor and Subhasaya respectively. Smt.Rajalakshmamma, having expired on 2nd June 1990, Section 15 of the Hindu Succession Act 1956, would come into play which reads thus:
"15. General rules of succession in the case of female Hindus:-
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
b) secondly, upon the heirs of the husband;
c) thirdly, upon the mother and father;
d) fourthly, upon the heirs of the father; and
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e) lastly, upon the heirs of the mother.
(2) xxxx
(a) xxxx
(b) xxxx
25. A plain reading of above provision would indicate that property of a female Hindu dying intestate would devolve according to the rules set out in Section 16 of the Hindu Succession Act, 1956 i.e. firstly, upon the sons and daughters (including the children of the pre-deceased son or daughter) and the husband. In instant case, undisputedly Smt.Rajalakshmamma's husband had pre-deceased and her only son Sri.Badrinath i.e., the father of the plaintiffs and husband of the first defendant was alive and it devolved upon him on her demise. Thus, upon such devolution, Sri.Badrinath became the absolute owner of the property and as such he had executed three sale deeds referred to herein supra during his life time. The
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plaintiffs did not acquire any right to the property of Smt.Rajalakshmamma either during her life time or on her demise and it is only the father of plaintiffs viz. Sri.Badrinath who acquired title to the suit schedule property. plaintiffs claiming any right of ownership does not arise. In other words, no other heirs of Smt.Rajalakshmamma except her son Sri Badrinath being alive as specified under clause(a) of sub section (1) of Section 16 of the Act at the time of death of Smt.Rajalakshmamma, plaintiffs did not acquire any right over the property which was purchased by Smt.Rajalakshmamma and it devolved on her only son- Sri.Badrinath on her demise on 2nd June 1990. Only in the event of said Sri Badrinath had not sold the suit schedule property or the property which devolved upon him after his mother's death had remained with him, necessarily on his demise, plaintiffs and the first defendant viz. children and wife would have acquired
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right, title and interest. Said situation has not arisen in the instant case inasmuch as, said Sri Badrinath had sold the property during his life time itself excluding the plaintiffs. Even if they had joined in the execution of the sale deed or otherwise, it does not vest them any right over the property.
26. Thus, when right to sue did not survive on the plaintiffs, i.e., children of Sri Badrinath and grand children of Smt. Rajalakshmamma necessarily the suit was clearly barred under Order VII Rule 11(d) of CPC. As such, continuation of the proceedings before the trial Court would only be a exercise in futility inasmuch as the cause of action pleaded in the plaint bars the plaintiffs right to sue, and an illusory cause of action had been created by the plaintiffs or in other words, illusory cause of action, which had been pleaded by plaintiffs, had been rightly noticed by the learned trial Judge and rightly so has rejected the plaint. We do not
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find any error having been committed by the learned trial Judge in undertaking such an exercise.
27. Though Mr. S.P. Kulkarni, learned counsel appearing for the appellants/plaintiffs would be correct in contending that learned trial Judge could not have recorded a finding with regard to the Will propounded by the plaintiffs for rejection of the plaint, we do not propose to modify or vary the order of the trial Court whereunder the plaint has been rejected for the obvious reason that the right to sue not being available to the plaintiffs, question of continuing the suit would not arise and though defendants 3 and 4 were concerned only with the schedule 'B' property, the plaint could not have been rejected in part or partially as held by the Hon'ble Apex Court in SEJAL GLASS LTD. V. NAVILAN MERCHANTS PVT. LTD. reported AIR 2017 SC 4477 and in the matter of MADHAV PRASAD AGGARWAL
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AND ANOTHER V. AXIS BANK LIMITED AND ANOTHER 2019(7) SCC 158.
28. The contention raised by Mr.Kulkarni in that regard deserves to be accepted and the finding recorded by the trial Court with regard to Will cannot be sustained as it is contrary to the law laid down by the Hon'ble Apex Court as well as this Court. In the event trial Court were to arrive at a conclusion that the plaint were to be rejected only in respect of schedule 'B' property and the suit ought to have been confirmed in respect of schedule 'A' property as is sought to be contended by Sri.Kulkarni, judgments relied upon by him would have been squarely applicable and in the event of order had been passed by the trial Court rejecting the plaint in part, it could not have been sustained. However, such a situation has not arisen in this case inasmuch as, the learned trial Judge has rejected the plaint in toto on the ground of there being
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no cause of action and the one depicted by the plaintiffs in the plaint is an illusory cause of action on the ground that right to sue was not available to the plaintiffs.
29. It is also necessary to observe that when the right to sue does not survive to the plaintiffs, question of granting liberty to the plaintiffs to sue in respect of the schedule 'A' property does not arise and yet another round of litigation cannot be allowed to be commenced. Hence, to that extent, the observation of the learned trial Judge was not called for and same cannot be sustained.
30. For the reasons aforesaid, we proceed to pass the following order :
ORDER
i) Appeal is hereby dismissed;
ii) Judgment and decree dated 24th July 2020 passed in O.S.No.430 of 2019 rejecting the
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plaint for the reason set out herein above is affirmed except to the extent of the observations made herein above with regard to the Will propounded by defendants 3 and 4 and liberty granted to plaintiffs.
(iii) No order as to costs.
31. As the appeal has been disposed of on merits, consequently I.A.I/2020 is dismissed as having become infructuous.
SD/-
JUDGE SD/-
JUDGE rs