Illegitimate children have rights to ancestral property, and the Trial Court cannot reject the plaint based on the averments in the written statement.

1. This appeal is preferred by the defendant Nos.1 to 4 against the judgment passed by the Court of the V Additional Sessions Judge, Mysore in R.A.No.434/2012. During the pendency of the appeal, defendant No.2 died.

2. The facts of the case in brief are that the respondent Nos.1 and 2 filed O.S. No. 494/2004 against the appellants and five others seeking the relief of partition and separate possession of half share of the second plaintiff in and upon the plaint schedule property. They have also sought the monthly maintenance of Rs.4,000/- for the first plaintiff. Further, they sought perpetual injunction for restraining the defendant Nos.1 to 4 from alienating the plaint schedule properties to defraud the rights of the plaintiffs. The plaintiff No.1 claims to be the second wife of the defendant No.1 and that the plaintiff No.2 is born in the relationship between the plaintiff No.1 and the defendant No.1. The defendant No.2 is the first wife of the defendant No.1 and the defendant Nos.3 and 4 are the daughters born in the wedlock between the defendant Nos.1 and 2. The defendant Nos.1 to 4 have filed the written statement denying the plaint averments, particularly the claim of the plaintiff No.1 to be the second wife of the defendant No.1 and the claim of the plaintiff No.2 to be the son of the defendant No.1. In the said suit proceedings, the defendant No.1 filed I.A.No.12 invoking Order VII Rule 11(a) and (d) of CPC seeking the rejection of the plaint.

3. It is worthwhile to notice that the defendant Nos.1 to 4 filed the written statement on 12.10.2004 and I.A.No.12 five years thereafter, that is on 13.10.2009. The Trial Court, by its order, dated 9.7.2010 allowed the said I.A. and rejected the plaint holding that the suit is against the provision of law and that there is no cause of action for filing the suit. Aggrieved by the said order, the plaintiffs filed R.A.No.434/2012 in the District Court, Mysore. The First Appellate Court, by its judgment, dated 12.4.2014 allowed the appeal by setting aside the Trial Court’s order and remanding the matter back to the Trial Court.

4. Sri M.K. Sripathi, the learned counsel for the appellants has urged the following three grounds:

(a) The suit for partition and separate possession cannot be filed by the son, be it legitimate or illegitimate, during the life time of his father.

(b) The illegitimate son is not entitled to a share in the ancestral property; at the most his claim is to the self-acquired property of the father.

(c) An illegally wedded wife is not entitled to claim maintenance from her husband.

5. In support of his submissions, he relies on the following two authorities:

(i) ILR 2009 Kar 3527, Chandamma and others v. Smt. Muktabai and another.

(ii) ILR 2008 Kar 3453, Sri Kenchegowda v. K.B. Krishnappa and others.

6. The submissions of the learned counsel have received my thoughtful consideration. The first question that arises for my consideration is whether the plaint can be rejected on the basis of the averments in the written statement. It is trite that the plaint can be rejected, if it does not disclose any cause of action or if it is opposed to law, even when all the plaint averments are taken to be true and correct on their face value. While examining the request of the defendants for the rejection of the plaint, the Trial Court cannot look into the written statement. As noticed supra, I.A.No.12 is filed after five years from the date of filing the written statement. Paragraph No.6 of the Trial Court’s order reads as follows:

“It is an admitted fact that plaintiff No.1 Smt. Shivamma is the 2nd wife of the defendant No.1 Sannaswamy. It is also an admitted fact that the defendant No.2 Saraswathamma is the 1st wife of the defendant No.1. Further, it is also an admitted fact that the plaintiff No.2 Vishwanath is the son of the 2nd wife of the defendant No.1. Further, it is also admitted fact that the defendant Nos.3 and 4 are the children of 1st wife of Sannaswamy”

7. The per