G.A. Suresh vs Rathnamma & Others

H.P. Sandesh, J

This matter is listed for admission today. Heard the learned counsel for the petitioner.

In this revision petition, the order impugned is rejection of the application filed under Order 7 Rule 11 of CPC. The very contention of the learned counsel for the petitioner is that this revision petitioner had purchased the property vide sale deed dated 28.02.2004 and the very contention before the Trial Court is that as per Section 6(1) of the Hindu Succession Act, 1956, the daughter of coparcener is barred from claiming share in any coparcener property which is alienated before 20.12.2004. Hence, invoked Order 7 Rule 11 of CPC to reject the plaint.

This application was resisted by filing the objection statement by the plaintiff contending that the suit is filed for the relief of partition and separate possession in respect of the suit schedule property. It is further contended that without the trial, this application is not maintainable. It is contended that the plaintiff had no knowledge of the sale deed and the question of barred by any law is mixed question of law and fact and the same has to be considered during the course of trial.

The Trial Court having considered both the grounds urged in the application and the statement of objection, extracted the provision of Order 7 Rule 11 of CPC and also taken note of the judgments reported in (2018) 5 SCC 644 and (2020) 3 INDIAN CIVIL CASES 448 with regard to the factual aspects that when an application is filed under Order 7 Rule 11 of CPC, the Court has to look only into the averments of the plaint and not the defence of the defendant. The Trial Court also taken note of the Karnataka Amendment, which came into force in 1994, wherein rights of the daughters are also protected and comes to the conclusion that the matter requires to be tried and the same has to be determined at final stage and not at the stage of considering the averments of the plaint and rejected the application.

The main contention of the learned counsel for the petitioner is that the amendment was brought in 2005 and the sale deed was made in 2004 i.e., prior to Amendment Act 2005 and hence the very reasoning given by the Trial Court is erroneous. The said contention cannot be accepted. The learned counsel not disputes the fact that Karnataka Amendment was made in 1994 and admittedly the sale was taken place in 2004 and during the earlier Karnataka Amendment, the rights of the daughters were also protected. When such being the case, whether they are entitled for share or not has to be adjudicated only after trial. Hence, I do not find any error committed by the Trial Court in rejecting the application filed under Order 7 Rule 11 of CPC. It is settled law that the Court has to look only into the averments of the plaint and not the defence of the defendant when an application is filed under Order 7 Rule 11 of CPC and hence I do not find any merit in the revision petition.

In view of the discussions made above, I pass the following:

ORDER

The revision petition is dismissed.