The main legal point established in the judgment is that a plaintiff must establish a clear right to sue and a valid cause of action, and speculative succession does not establish a contingent interest as per the relevant legal provisions.

JUDGMENT

M. M. DAS, J. The plaintiff-appellant has filed this appeal challenging the concurrent judgments passed by the learned courts below rejecting the plaint under Order – VII, Rule – 11 C.P.C. on the ground that the plaintiff’s suit does not disclose a right in him to sue and is tainted with an illusory cause of action.

2. The plaintiff filed the suit, being, C.S. No.527 of 2009, before the learned Civil Judge (Senior Division), Puri for declaration of his contingent interest over the suit property and for permanent injunction restraining the defendant no.1 from alienating the suit property either herself or through her agent. The plaintiff is the son of the defendant no.1 (mother). The defendant no.1 inherited the suit property from her parents by way of succession. According to the plaintiff, the defendant no.1 is not in a fit mental condition to deal with the suit property, as she is easily influenced and has no independent thought because of her illness. Taking advantage of such situation, the defendant no.2, who is the younger brother of the father of the plaintiff, has got a Power of Attorney executed by the defendant no.1 in favour of the defendant no.3.

3. After appearance of the defendants, an application was filed by them under Order – VII, Rule – 11 C.P.C. for rejection of the plaint on the ground that the plaintiff has got no semblance of right, title and interest or possession over the suit property. The defendant no.1 succeeded to the suit properties, which belonged to her mother and after the death of her mother, it has been recorded in the name of the defendant no.1

4. The learned trial court, upon hearing the said application, by his order dated 05.12.2009, came to the conclusion that as admitted by the plaintiff, the defendant no.1 is the full owner of the suit properties and, thus, the plaintiff can only lay claim on the said properties after the demise of his mother – defendant no.1, but so long as she is alive, the plaintiff has no existing right and hence, the plaintiff has no cause of action to file the suit during the life time of the defendant no.1 claiming any right, title and interest on her property and rejected the plaint under Order VII, Rule 11(a) C.P.C. Being aggrieved by the aforesaid order of the learned trial court, the appellant preferred R.F.A. No. 128 of 2009 before the learned District Judge, Puri. The learned lower appellate court on perusing the pleadings in the plaint and on analyzing the provisions of Order – VII, Rule – 11 C.P.C. and relying upon various decisions of the apex Court, endorsed the findings of the learned trial court confirming the same.

6. The Second Appeal has been admitted on the following substantial questions of law:-

(I) Whether the learned courts below have acted contrary to law in rejecting the plaint filed by the appellant under Order – VII, Rule – 11 (a) C.P.C. holding that the plaint does not disclose the cause of action by construing the plaintiff’s suit as a suit on speculative succession without considering the plaint averments made in paragraph – 3 of the plaint to the effect that the defendant no.1 did not have the stability of mind to execute the Power of Attorney, which aspect, if would have been proved factually in the suit, would have nullified all actions of the Power of Attorney Holder, defendant no.3, who is respondent no.3, herein ?

(II) Whether the plaintiff under law can maintain a suit on a contingent interest which is conceptually different from a speculative succession and where allegation of fraud has been made ?

7. Mr. R.K. Mohanty, learned counsel appearing for the appellant submitted that an application has been filed by the plaintiff for amending the plaint, during the pendency of the Second Appeal, for introducing a prayer in the plaint to declare the Power of Attorney executed by the defendant no.1 in favour of the defendant no.3 as a void document. He further submitted that Order – VII, Rule – 11 (a) C.P.C. though provides that a