N.R. Shashikala vs N.R. Ramachandraiah and Others

N. Kumar, J.—This appeal is preferred by the plaintiff challenging the order passed by the trial Court allowing the application filed by the defendant No. 4 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908, dismissing the plaint as barred by law.

For the purpose of convenience the parties are referred to as they referred to in the original suit.

The plaintiff and defendant Nos. 2 & 3 are the daughter and son of defendant No. 1. Defendant No. 1 acquired a land to an extent of 2 Acres 15 guntas in Sy. No. 72 situated at Vajrahalli Village, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District at a partition. The plaintiffs grand father and his brother entered into a registered partition deed dated 21.11.1979, which was registered before the Sub-Registrar, Nelamangala. The plaintiff claims that she has got 1/2 share in the said land. There is no partition in the family. The defendant Nos. 1 to 3 without knowledge and consent of the plaintiff has sold an extent of 15.35 guntas of land in Sy. No. 72 in favour of defendant No. 4 under registered sale deed dated 03.09.1994. Similarly, the defendant Nos. 1 to 3 have alienated to an extent of 21.75 guntas of land in favour of defendant No. 4 under registered sale deed dated 10.11.1999. Further, defendant Nos. 1 to 3 without knowledge and consent of the plaintiff had sold an extent of 37 1/2 guntas of land in the said survey number in favour of defendant No. 4. As she has denied the share in the property claiming that she is a coparcener by virtue of amendment to Hindu Succession Act, 2005, the suit is filed for partition and separate possession of her legitimate share in the plaint schedule property.

After service of summons defendant No. 4 entered appearance, however, he died and his LRs were brought on record. They filed detailed written statement contesting the plaint. They also filed application under order VII Rule 11(d) of CPC for rejection of the plaint on the ground that plaint does not disclose the cause of action.

The said application was heard and the trial Court was of the view that as the alienation made by the defendant Nos. 1 to 3 are prior to 20.12.2004 even if they are to be treated as coparceners to the property plaintiff -daughter has no right in the property in view of proviso to sub-section (1) of Section 6 of the Amended Hindu Succession Act and therefore, he rejected the plaint.

We have heard the learned counsel for appellant.

Though the daughter was given status of coparcener by virtue of Hindu Succession Act, 2005, proviso to Sub-section (1) to Section 6, makes it clear that any alienation made prior to 20.12.2004 are not affected by such law. In that view of the matter on the day when the Act came into force property was not available for partition. Therefore, on the date the plaintiff filed a suit she has no right in the said property, even though she has mentioned in the plaint to the effect that the schedule property fell to her grand father''s share under the registered partition deed subsequently, father and son sold the property in favour of the defendants prior of 20.12.2004, the trial Court was justified in rejecting the plaint.

No merit. Dismissed.