A Hindu wife cannot seek partition of her husband's self-acquired property during his lifetime; such rights only arise upon his death.

JUDGMENT :

(SATHI KUMAR SUKUMARA KURUP, J.)

The Appeal is filed by the Plaintiff in O.S.No.62 of 2020 against the order passed by the learned III Additional District and Sessions Judge, Tiruvallur at Poonamallee in I.A.No.4 of 2021 in O.S.No.62 of 2020.

2. The parties to the dispute are referred to as per the status before the learned III Additional District and Sessions Judge, Tiruvallur at Poonamallee as Plaintiff and Defendant. The Appellant will be referred as Plaintiff and the Respondent will be referred as Defendant-1.

3. The Plaintiff had filed the suit in O.S.No.62 of 2020 claiming the relief of partition against the Defendant-1 and Defendant-2. Defendant-1 is the husband of the Plaintiff. Defendant-2 is the younger brother of the Husband of the Plaintiff. The claim of the Plaintiff is that the suit properties were purchased by the income derived by the Plaintiff and the brother in law of the Plaintiff. The Defendant-2 had been in the business of the construction of civil contracts and money lending. The Defendant-1, the husband of the Plaintiff retired from the Indian Army and after retirement he has no income, as he is unemployed and since he happens to be the eldest member among the three, the properties were acquired in his name by the funds of the Plaintiff and her brother in law, the Defendant-2. Therefore, the properties are joint family properties in the name of Karta of the family, the Defendant-1 who happens to be the Husband of the Plaintiff. The cause of action for the suit arose on 06.08.2002 when the suit schedule 'A' Property was purchased on 03.06.2005, when the suit schedule 'B' property had been purchased on 23.03.2001, when the suit schedule 'C' property was purchased on 19.09.2005 and when the suit schedule 'D' property was purchased on 01.02.2018. The Plaintiff entered into rental agreements on 01.04.2019 and 20.12.2019 respectively and the Plaintiff lodged Police Complaint on 20.01.2020 at T-3, Police Station, Korattur on various other subsequent dates that the Defendant-1 tried to collect rents from the tenants and threatened the Plaintiff. When the Plaintiff sent legal notice dated 07.02.2020 claiming partition against the Defendant-1 and Defendant-2. The legal notice sent to Defendant-1 returned on 08.02.2020 as 'No such person' and the legal notice sent to the Defendant-2 was served with acknowledgment dated 08.02.2020.

4. The suit was resisted by the Defendant-1 claiming that he served in the Indian Army for 20 years and during his service in the Indian Army, he used to send money to his wife. Based on the remittances by the Husband for 20 years, the properties were acquired in his name. The Plaintiff was a house wife and she did not have any independent income as claimed by her. The suit was filed as a collusive suit by his younger brother who is unemployed and his wife. Also in the written statement he claimed that the Plaintiff had illicit relationship with her brother in law.

5. After filing of the written statement, the Defendant-1, husband of the Plaintiff had filed petition under Order VII Rule 11 C.P.C seeking to reject the plaint.

6. The main ground seeking to reject the plaint is that the wife does not have birth right in the joint family. To a Hindu wife, to have share in the joint family, the right accrues only after the death of her husband. Therefore, there is no cause of action seeking partition. Therefore, the Defendant-1 as Petitioner sought rejection of the plaint. The petition was resisted by the Plaintiff as Respondent stating that the points raised in the petition cannot be considered to reject the plaint and the pla