Narayanamma vs Thammaiah and Others

N. Kumar, J.—Admit.

Even though the matter is listed for admission, with consent of both the parties, it is taken up for final disposal.

This is a plaintiff''s Regular First Appeal challenging the order passed by the Trial Court rejecting the plaint under Order 7 Rule 11 of the Civil Procedure Code on the ground that the petitioner has no right in the property and also on the ground that the suit is barred by law of limitation.

For the purpose of convenience, the parties are referred to as they are referred to in the plaint.

The plaintiff is the daughter of one Late Doddavalappa. Defendants 1 to 6 are the children of Late Chikkavalappa. Defendant No. 7 is the son of Late Lagumakka and Late Obalappa and grand son of Late Doddapattanadurappa. One Late Puttappa is the propositus. His wife is Kaiyyamma. They had four sons by name Late Doddapattandurappa, Late Doddavalappa, Late Chikkavalappa and Late Munishamappa. In the plaint, the genealogy tree is explained. Late Doddapattandurappa had two daughters by name Kenchamma and Lagumakka. Smt. Kenchamma and her husband had no issues and both are dead. Lagumakka, W/o. Obalappa has a son by name Venkatesh i.e., 5th defendant in the suit. Late Doddavalappa had a daughter by name Smt. Narayanamma, who is the plaintiff in the suit. Late Chikkavalappa had four sons namely defendants 1 to 4. Late Munishamappa and his wife Nagamma had no issues and they were dead long ago. The case of the plaintiff is Late Doddavalappa and his brothers were living in a Joint Family. The schedule properties are all Joint Family properties. In the year 1967 Late Chikkavalappa, during his life time fraudulently had created some documents in collusion with defendants 6 and 8 to 12 to defraud the legitimate right of the plaintiff. A sale deed dated 19.11.1967 is created in favour of Krishnappa, the 6th defendant. One more document came to be created by Chikkavalappa on 09.08.1968. A gift deed dated 09.08.1968 was also created in favour of Lagumakka. There is also a reference to the sale deed dated 01.09.1983. Subsequently, they have sold the properties. Plaintiff submits that she was not aware of the said transactions. She is not a party to any of these transactions. Therefore, those deeds do not bind her to any extent. She has been demanding for partition and separate possession of her legitimate share in the schedule properties during the life time of Chikkavalappa. The defendants 1 to 5, on one pretext or the other have avoided the partition of the schedule properties. Ultimately, a Panchayath was held in December 2006. It is in the course of the said Panchayath, it was disclosed that the aforesaid lands were sold by Chikkavalappa in favour of defendants 8 to 12. Thereafter, she verified the same by obtaining certified copies of the revenue documents in June 2007 and called upon the defendants to effect a partition. It was denied. Therefore, contending that the cause of action for the suit arose during December 2006 and June 2007, she filed a suit for partition and separate possession of her legitimate share in all the plaint schedule properties on 03.01.2009.

After service of suit summons, written statement is filed contesting the claim. Thereafter, an application is filed under Order 7 Rule 11 of CPC for rejection of the plaint on the ground that it is barred by law and also the suit is not maintainable for want of cause of action. That application was opposed. The Trial Court after considering the rival contentions and after exhaustively referring to the plaint allegations held that the plaintiff being a daughter was born in the year 1949 and therefore, she is not entitled to the benefit conferred on a daughter under Section 6A of the Hindu Succession Act which came into effect from 09.09.2005. Therefore, the Trial Court was of the view that there is no cause of action to the suit. Similarly, it was of the view that though the alienations are of the period from 1967 to 1983 and therefore, she has taken more than 1 1/2 years to file the suit. As such, the suit is clearly barred by time. Accordingly, the plaint was rejected and consequently, the suit came to be dismissed.

The learned Senior counsel appearing for the appellant assailing the impugned order contended that as no period is prescribed for a suit for partition on the ground that the suit is filed after 1 1/2 years after the period of alienation being barred by time is ex facie illegal and requires to be set-aside. Similarly, he contended that the plaintiff was claiming a share in his father''s property. In view of the 1956 Act, when a coparcener dies leaving behind a female legal heir, the property of the coparcener devolves not by survivorship but by inheritance under Section 8 of the Hindu Succession Act and therefore, the Trial Court was not justified in holding that there was no cause of action for the suit.

Per contra, the learned counsel for the respondents, supporting the impugned order contended that when alienations have been taken place in the year 1963 up to 1983, the suit filed in the year 2009 is clearly barred by time. Even if no time is prescribed under the Limitation Act the suit for partition is not maintainable as it is filed beyond nine years after alienations. Therefore, she submits that no case for interference is made out.

From the aforesaid facts and the rival contentions, it is clear that the suit is one for partition and separate possession filed by a daughter against the members of a Joint Family of which her father was a member. From the averments in the plaint, it is clear that there was no partition in the Joint Family. It is true that the plaintiff was born prior to 1956. Therefore, she may not be entitled to the status of a coparcener, which is conferred on a daughter under Section 6A of the Hindu Succession Act. But under Section 6 of the Hindu Succession Act before amendment, the interest of a coparcener in the coparcenary property devolved under Section 8 of the Act, if a female heir is left behind. Therefore, though the daughter is not entitled to equal share with the sons, she is entitled to equal share in the share of her father. Therefore, the approach of the Trial Court is ex facie illegal and cannot be sustained. Accordingly, it is hereby set-aside.

Insofar as the ground of limitation is concerned, the learned Judge was of the view that though the plaintiff came to know about the alienations in the year December, 2007 as the suit is filed beyond 1 1/2 years, in 2009, the suit is barred by limitation. In the first place a plaint cannot be rejected on the ground of limitation, as limitation is a mixed question of law and fact and has to be decided after the trial, unless the plaint averments, ex facie shows that the suit is barred by time. The suit is one for partition. There is no plea that there was an earlier partition. No period is prescribed under the Limitation Act for filing a suit for partition. The suit for partition could be filed at any time before partition. In that view of the matter, the order is unsustainable. Accordingly, we pass the following order:

(a) Appeal is allowed.

(b) The impugned order is set-aside.

(c) I.A. No. 4 filed under Order VII Rule 11 read with Section 151 of CPC is rejected.

(d) The suit is restored to its original file.

(e) The Trial Court is directed to frame issues and then record evidence on all issues and decide the case on merits in accordance with law.

(f) It is made clear that the Trial court while deciding the case on merits will not be guided by any of the observations made by this Court either in this order or the impugned order.