A partition suit concerning property inherited from a female Hindu cannot be maintained as coparcenary property, as such property is held as absolute ownership under the Hindu Succession Act.

JUDGMENT :

(Arun Kumar Jha, J.)

The instant petition has been filed under Article 227 of the Constitution of India for setting aside the order dated

25.06.2018 passed in Partition Suit No.92 of 2014 by the learned Sub Judge-V, Chapra whereby and whereunder the petition dated 25.06.2015, filed by the petitioner questioning the maintainability of the suit has been rejected.

2. Briefly stated the case of the parties, as it appears from the record, is that the plaintiffs/respondents 1st set have filed Partition Suit No.92 of 2014 against the petitioner and respondents 2nd set claiming 4/25 share in the disputed properties as mentioned in Schedule-1 of the plaint. The parents of the petitioner were Ram Suran Rai and Chhatho Devi, who had four sons and one daughter including the petitioner. The father of Chhatho Devi was Gaya Rai, who gifted the properties of Schedule 1 of the plaint to his daughter by a registered deed of gift dated 30.12.1966. Chhatho Devi came in possession after accepting the gift deed. When Chhatho Devi died, her husband and her children inherited the suit properties. The respondents 1st set are the wife, sons and daughter of the petitioner, who filed the suit for partition claiming that the petitioner has developed drinking habits and has been squandering the properties. The petitioner and the respondent nos. 5 to 7 appeared and filed the written statement putting a defence that the plaintiffs have no right in the suit properties during the life time of the petitioner. Hence, the suit is not maintainable and there is no unity of title and possession. The sons of Chhatho Devi have already partitioned the suit properties and came in separate possession of their allotted shares. On the basis of aforesaid facts, the petitioner filed a petition on 25.06.2015 praying to decide the question of maintainability of the suit as a preliminary issue. The plaintiffs/respondents 1st set filed rejoinder on 11.08.2015 opposing the prayer. However, even in the rejoinder it was admitted that the original owner of the property was Gaya Rai. The learned trial court heard the parties and rejected the petition of the defendant/petitioner vide order dated 25.06.2018. This order has been challenged in the present civil miscellaneous petition.

3. The learned counsel for the petitioner submitted that the impugned order is simply perverse and the learned trial court has passed the order without application of judicial mind and against the provisions of law. The learned trial court has failed to consider that question of maintainability was a pure question of law inasmuch as the disputed land is not ancestral property, but inherited property of the petitioner from her mother and for this reason not liable to be partitioned during the life time of the petitioner. Since the property is not ancestral or coparcenary, no right accrues to the petitioner and there is no cause of action for bringing the suit. The learned counsel further submitted that the learned trial court has wrongly come to the conclusion that the question involved enquiry into the facts and issues requiring enquiry of the facts cannot be tried as a preliminary issue. The Hon’ble Supreme Court in the case of Sathyanath and anr. v. Sarojamani reported in (2022) 7 SCC 644, in paragraph 21, has held that preliminary issues can be those where no evidence is required and on the basis of reading of the plaint or the applicable law, if the jurisdiction of the court or the bar to the suit is made out, the court may decide such issues with the sole objective for the expeditious decision. Thus, if the court lacks jurisdiction or there is a statutory bar, such issue is required to be decided in the first instance so that the process of civil court is not abused by the litigants, who may approach the civil court to delay the proceedings on false pretext. The learned counsel further submitted that Order 14 Rule 2 (2) of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) prov