Kishore Kumar Agrawalla and Others vs Ashish Agrawalla

Poonam Srivastav, J.—Heard learned Counsel for the revisionists.

The instant revision has been preferred challenging the order dated 22.12.2010 passed by Sub-ordinate Judge-I, Dhanbad, in Title (Partition) Suit No. 126 of 2010 Ashish Kumar Agrawall v. Kishore Kumar Agrawalla and Ors.

After institution of suit, an application on behalf of the Defendant was preferred under Order VII Rule 11 read with Section 151 CPC for rejection of the plaint on the ground that no cause of action arose to the Plaintiff for filing the instant suit. The main contention that since the partition suit has been instituted by the son during the life time of his father and, therefore, the suit is not maintainable and the plaint is liable to be rejected. The suit property cannot be partitioned in view of the Hindu Succession Act as well and, therefore, institution of suit is malicious and without substance and is liable to be rejected outright.

The next contention of the learned Counsel is that since the property is not available for partition specially in view of the law laid down by the Apex Court in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, paragraph-16A. The said decision is while deciding the case on merit and not at the stage of rejection of the plaint outright under Order VII Rule 11 C.P.C.

I have gone through the paragraph 16A where the law u/s 8 of the Hindu Succession Act, 1956 laid down the scheme of succession to the property of a Hindu dying intestate. The schedule classified the heirs on whom such property should devolve. Those specified in Class I of the schedule such property should devolve. The Apex Court further held that if there was no co-parcenary subsisting between a Hindu and his sons at the time of death of his father, property received by him on his father''s death could not be so blended with the property which had been allotted to his sons on a partition effected prior to the death of the father. In my view, this decision is not applicable to the controversy involved in the facts and circumstances of the present case. Accordingly, this decision is of no help to the revisionists.

The next case relied upon by the learned Counsel is in the case of Yudhishter Vs. Ashok Kumar, para-10. Perusal of para-10 makes it clear that the Supreme Court has followed the decision of the principle laid down in the case of Commissioner of Wealth-tax (supra) and no new point was discussed. Only the decision of the year 1986 has been affirmed by a subsequent decision. Learned Counsel has laid emphasis on Order VII Rule 11 CPC which is quoted below:

Order 7 Rule 11 Rejection of plaint.--

The plaint shall 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:

(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.

The submission is that since there is no cause of action in the instant suit as well as the relief claimed in the suit is barred by the provisions of Hindu Succession Act, therefore, the case is covered squarely under Order VII Rule 11 CPC and the court below committed illegality while rejecting the application of the Defendant.

After hearing learned Counsel at length and going through the decision as well as the provision of law, I am of the considered view and in complete agreement that the finding recorded by the court below to the effect that cause of action has already been elucidated in para-17 and 21 of the plaint and it cannot be said that no cause of action has been mentioned. I am of the view that it is during the course of the proceedings in the suit, the court normally frames an issue whether the cause of action arose or not and it is that relevant time existence of cause of action is to be examined, this is the ground taken by the court below while rejecting the application of the revisionists. The cause of action has already been detailed in the plaint. So far the legal proposition is concerned in view of the Hindu Succession Act, the son is not entitled for any share during the life time of his father that relates to the merit of the suit which is to be seen after the pleadings are exchanged and evidence is adduced by both the parties.

In the facts and circumstances, I am of the considered view that the revision lacks merit and is liable to be dismissed.

There shall be no order as to cost.