Sunil Kumar Mittal vs Madhu Garg And Others

Alok Kumar Verma,J

This Civil Revision has been preferred under Section 115 of the Code of Civil Procedure, 1908 against the order dated 06.12.2021, passed by the learned Civil Judge (Senior Division), Dehradun in Original Suit No.08 of 2021, “Smt. Madhu Garg vs. Manish Garg and Others”, whereby, the application, filed by the revisionist – defendant no.7 under Order 7 Rule 11 C.P.C., has been rejected.

Heard Mr. Siddhartha Sah, learned counsel for the revisionist – defendant no.7 and Mr. Piyush Garg, learned counsel for the respondent no.1 - plaintiff.

The said Original Suit (No.08 of 2021) was filed by the respondent no.1 – plaintiff against the revisionist – defendant no.7 and respondent nos.2 to 7 seeking relief for partition of her 1/5 share in the property-in-question and for rendition of accounts of income from out of the rental/ sale of the properties of the Hindu Undivided Family. In the said Original Suit, the revisionist – defendant no.7 filed an application under Order 7 Rule 11 C.P.C. on the ground that Shri Krishan Chand Mittal, father of the plaintiff, died on 22.01.2003. An amendment to the Hindu Succession Act, 1956 was brought by the Hindu Succession (Amendment) Act, 2005, which came into effect on 09.09.2005 and prior to the amendment of 2005 under the Hindu Succession Act, Section 23 of the Hindu Succession Act disentitles a female heir to ask for partition in respect of properties of the joint family until the male heirs choose to divide their respective shares therein. The law, prevailing prior to such amendment, shall prevail under the present case, and, not the law that has come into effect by the Amendment Act, 2005. Therefore, the suit for partition of the joint family property, brought by the plaintiff, is legally barred under law, and is legally not maintainable.

After hearing both the parties, the learned Trial Court has rejected the said application, filed by the revisionist – defendant.

Mr. Siddhartha Sah, learned counsel for the revisionist, submitted that the alleged HUF Krishan Chand & Sons (HUF), does not fall within the preview of the Hindu Succession Act, 1956 and was a firm, created for taxation purposes only, which hold four specific persons in equal proportions, i.e. Late Shri Krishan Chand Mittal, Smt. Rukmani Devi, Shri Anil Mittal & Shri Sunil Mittal; the learned Trial Court has not given definite finding, therefore, the impugned order is not sustainable. In support of his submissions, the learned counsel for the revisionist has relied upon a judgment of this High Court, passed in “M/s Manu Maharani Hotels Ltd. vs. Thakur Dan Singh Bisht Trust and Another”, 2009 (1) U.D., 30. The learned counsel for the revisionist further argued that the plaintiff’s suit is barred by law of limitation, but, this aspect has not been considered by the learned Trial Court.

On the other hand, Mr. Piyush Garg, learned counsel for the respondent no.1 – plaintiff, opposed the submissions of the revisionist and submitted that the learned Trial Court recorded the contentions of both the parties and after recording the relevant facts, the learned Trial Court found that the matter comes under the ratio of the judgment of the Hon’ble Supreme Court in Vineeta Sharma vs. Rakesh Sharma and Others, (2020) 9 SCC 1. The learned counsel for the respondent further submitted that the plea of the limitation was not taken by the revisionist during the arguments before the learned Trial Court, therefore, the revisionist cannot raise any new plea before this Court in revision.

It is settled law that clause (d) of Order 7 Rule 11 of C.P.C. applies only when it appears from the statement in the plaint to be barred by any law. In Vineeta Sharma (supra) the Hon’ble Supreme Court observed that the daughter is considered as a coparcener in Hindu Undivided Family irrelevant of the fact of her father’s death. The Hon’ble Supreme Court has held as under:-

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect.

After perusal of the impugned order, it reveals that the revisionist – respondent no.7 had not raised any argument regarding the limitation. However, it will be appropriate to mention here that if the question of limitation is connected with the merit of the claim, such issue is to be tried along with other issues. A plaint cannot be rejected on the ground of limitation especially when it is a mixed question of fact and law and where there is no clear or specific admission in the plaint suggesting that the suit is barred by limitation.

Having heard the learned counsel for the parties, this Court is of the view that there is no ground to entertain this revision. The learned counsel for the revisionist could not show that the learned Trial Court did not apply its judicial mind while passing the impugned order or the learned Trial Court has exercised jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Therefore, the revision is liable to be rejected; the same is rejected at the admission stage. No costs.