A son governed by the Mitakshara School of Hindu Law has the right to claim partition of the ancestral property even during the lifetime of his father.

K.L. Shrivastava, J.

1. This revision petition is directed against the order dated 18-1-1989 passed by the IInd Additional Judge to the District Judge, Indore in Civil Suit No. 2 of 1988 whereby the petitioner's application under Order 7, Rule 11(a) of the Civil Procedure Code, 1908 (for short 'the Code') has been dismissed.

2. Circumstances giving rise to the revision petition are these : The non-applicant Kanhaiyalal is the son of Tikamdas, the non-applicant No.

10. The said Kanhaiyalal instituted the aforesaid suit in the year 1965 against his father Tikamdas, his uncles and others for partition of Joint Family property held by Nathmalji, his deceased grandfather who died prior to the enforcement of the Hindu Succession Act, 1956 (for short 'the Succession Act').

3. The petitioner is the son of Sarjubai, the daughter of non-applicant Kanhaiyalal's deceased uncle Gokuldas. On 15-11-1988 he filed the aforesaid application under Order 7, Rule 11 (a) of the Code stating that the nun-applicant Kanhaiyalal, during the life time of his father Tikamdas has no cause of action to sue for partition and the plaint, therefore deserves to be rejected on the ground that it discloses no cause of action. The application was opposed by the non-applicant Kanhaiyalal on the ground that the applicability of the provision in Order 7, Rule 11(a) of the Code is not attracted in the instant case.

4. The learned lower court by the impugned order dismissed the application stating that the controversy as to whether or not the non-applicant Kanhaiyalal has right to sue for partition of the joint family property raised in the application can properly be disposed of only after argument on merits of the case.

5. Learned counsel for the petitioner contends that for the purpose of Order 7, Rule 11 (a) of the Code the petitioner must be taken to admit for the sake of arguments that the plaint allegations are true, reserving his right to controvert those allegations in the further stages of the action, should the preliminary point be overruled. He urges that in leaving the controversy for disposal as to the cause of action at a later stage of the suit, the learned lower Court has failed to exercise its jurisdiction under the provision and the impugned order, therefore, deserves to be interfered with in revision. In support of the contention that the plaint does not disclose any cause of action Sections 4, 6 and 8 of the Succession Act, have been referred to and reliance has been placed on the decisions, amongst others, in W. T. Commr., Kanpur. v. Chandrasen, AIR 1986 SC 1753, Udhishthir's case, AIR 1987 SC 558 = 1987 MPRCJ 201 and Aher Hamir's case, AIR 1978 Guj. 10.

6. The contention of the learned counsel for the contesting non-applicants is that according to the Banaras School of Mitakshara, Hindu Law applicable to the parties (vide paragraph 5 of the plaint) the non-applicant Kanhaiyalal has the right to claim partition of the ancestral property even during the life-time of his father Tikamdas.

7. The point for consideration is whether the revision petition deserves to be allowed.

8. Order 7, Rule 11(a) of the Code provides that a plaint shall be rejected where it does not disclose a cause of action. It may be pointed out that there is distinction between a case where a plaint does not disclose cause of action and another where it does disclose cause of action but the Court on evidence comes to the conclusion that there is no cause of action.

9. Gopaldas died in the year 1962. Section 6 of the Succession Act consists of four paragraphs. The first paragraph reads as under : --

"6. Devolution of interest in Coparcenary property. -- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act."

The proviso below this first paragraph prunes the prin