G.D. Srinivas vs Veena Raghuraj and Others

B. Manohar, J.—Petitioner is the third defendant in O.S. No. 8964/2013 on the file of the XX Additional City Civil and Sessions Judge, Bangalore. Being aggrieved by the order dated 19.12.2014 passed on I.A. No. 4, rejecting the application filed by him under Order 7 Rule 11 of CPC, the petitioner has filed this writ petition.

The respondents No. 1 and 2 herein filed a suit seeking partition and separate possession of 6/25th share each in respect of ''A'' Schedule Property and 1/5th share each in ''B'' and ''C'' schedule properties. They also sought for declaration declaring the purported deed of partition dated 27.03.2003 as null and void and not binding on the plaintiffs and also seeks for mesne profits.

Defendant No. 3 in the suit filed written statement and also filed application under Order 7 Rule 11 of CPC to reject the plaint on the ground that there is no cause of action to file the suit. The suit filed by the plaintiffs is barred by Section 6(5) of Hindu Succession (Amendment) Act, 2005, barred by Limitation and Court Fee paid is insufficient and suit is not maintainable. The plaintiffs filed objections to the said application contending that on these grounds plaint cannot be rejected. The father of the plaintiffs/Sri G. Desikachar died intestate on 05.02.2003 and thereafter, plaintiffs sought for partition of the family properties. However, the defendant dragged on the matter and thereafter, they set up the registered partition deed dated 27.03.2003 for which plaintiffs are not parties. The plaintiffs have got 12 years time to seek for partition and the suit is not barred by limitation. The petitioners are not parties to the alleged partition deed dated 27.03.2003 and Section 5 of Hindu Succession Act, 1956 is not applicable. However, with regard to Court Fee is concerned, if the plaintiffs have not paid the deficit court fee, the Court has to give a finding and call upon the plaintiffs to pay the same. If plaintiffs does not pay the deficit court fee, then the trial Court can reject the plaint. Hence, sought for dismissal of the application.

The trial Court after considering the matter in detail found that three main grounds urged by the petitioner will not fall under Order 7 Rule 11 of CPC. The question of limitation is a mixed question of law and fact and it requires enquiry. The payment of court fee and the suit valuation is also mixed question of law and the said question will be decided in trial and dismissed said application. Being aggrieved by the said order, the present writ petition is filed.

Sri Ramananda A.D., learned advocate appearing for the petitioner contended that the order passed by the trial Court is contrary to law. The court fee paid is insufficient. Though the properties are assessed for Rs. 20,63,29,250/-, the court fee is paid at Rs. 200/-. Though the defendant had taken the objection regarding the payment of court fee, the Court has not framed any issues with regard to the deficit court fee. Further, the plaintiffs are the married daughters and they are not entitled for any share in the joint family properties. With regard to the amendment of the Hindu Succession Act, 1956, is concerned, the matter is pending before the Hon''ble Supreme Court. Hence, the plaintiffs are not entitled for any share in the said property. The trial Court has not taken into consideration the judgment of this Hon''ble Court reported in Veeragouda and Others Vs. Shantakumar @ Shantappagowda, with regard to the court fees and also judgment of the Delhi High Court with regard to Section 6(5) of the Hindu Succession (Amendment) Act and has passed the order impugned. The same cannot be sustained and hence, sought for setting aside the order passed by the trial Court by allowing the writ petition.

On the other hand, Sri P.N. Harish, learned advocate appearing for the second respondent argued supporting the order passed by the trial Court and contended that the grounds urged by the petitioner does not fall under any one of the clauses under Order 7 Rule 11 of CPC and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned advocates for the parties, perused the order impugned and other relevant records.

The records clearly disclose that respondent Nos. 1 and 2 filed a suit seeking partition and separate possession of 6/25th share each in respect of ''A'' Schedule Property and 1/5th share each in respect of ''B'' and ''C'' schedule properties, contending that the father died intestate in the year 2003. In the plaint, they also sought for declaration declaring that the alleged partition deed dated 27.03.2003 is not binding on them and they are not parties to the said partition deed. The contesting respondent filed the written statement denying the averment made in the plaint and also contended that the plaintiffs are not entitled to the share in the joint family properties. They also filed application under Order 7 Rule 11 of CPC seeking for rejection of the plaint contending that the suit filed by the plaintiffs is barred by limitation, the suit is under valued and there exists no cause of action to file suit. The trial Court after considering the matter in detail, found that the grounds urged by the plaintiffs do not fall under any one of the clauses of Order 7 Rule 11 of CPC.

I have carefully gone through the order passed by the trial Court and the pleadings of the parties. The plaintiffs and defendants No. 2 and 3 are the children and first defendant is the wife of Dr. G. Desikachar, who died on 05.02.2003, leaving behind the properties. The plaintiffs are the daughters of deceased and they sought for partition in the joint family properties. However, the defendants denied their share. The suit was filed seeking partition. The defence of defendants is that the suit is not maintainable and filed an application under Order 7 Rule 11 of CPC for rejection of the plaint. With regard to the Court Fee, the Court has not given any finding as to whether the plaintiffs have paid the deficit court fee or not and has not called upon the plaintiffs to pay the deficit court fee. In the absence of the same, the plaint can be rejected on the ground of insufficient court fee. With regard to the limitation is concerned, the records clearly discloses that the father of the plaintiffs and defendant Nos. 2 and 3 died on 05.03.2003 intestate. The plaintiffs are the daughters of Sri G. Desikachar, who sought for partition. However, defendant Nos. 2 and 3 denying the same contended that there is already partition of the joint family properties in the year 2003 and in view of that, plaintiffs have filed a suit for seeking partition, declaration under Article 110 of Limitation Act, 12 years has been prescribed for the person excluded from the joint family properties to enforce the right to the share therein. Whether suit filed by the plaintiffs is time barred or not requires enquiry, the plaint cannot be rejected. The allegation that the plaint is barred by law is concerned, the plaintiffs are married daughters of Sri G. Desikachar. In view of the amendment to Section 6(5) of the Hindu Succession Act, the plaintiffs are entitled for the share in the properties. Apart from that, they are not parties to the registered partition deed dated 27.03.2003. Hence, the suit filed by them is not barred by any law. The trial Court taking into consideration all these aspects of the matter, rejected the application. I find there is no infirmity or irregularity in the order passed by the trial Court. The suit filed by the plaintiffs cannot be dismissed on the grounds urged by the petitioner at the threshold. The petitioner has not made out a case for interference with the order passed by trial Court. Accordingly, the writ petition is dismissed.