The court held that properties claimed as joint family properties must be substantiated with evidence; mere assertions are insufficient, leading to the rejection of the plaint under Order VII Rule 11 of CPC.

ORAL ORDER

The petitioner-defendant No. 3 is before this Court in civil revision, challenging the order dated 19.07.2023 passed by the Trial Court in I.A. No. VIII in O.S. No. 355/2017 dismissing an application filed for rejecting the plaint under Order VII Rule 11 (a) & (d) read with Section 151 of CPC, 1908.

2. Respondent-plaintiffs who are the major daughters and minor son of the defendant No.1 had initiated suit in O.S.No.355/2017 against defendants No. 1, 2 and 3, seeking:

- to declare that the suit schedule properties are the joint family properties and the sale deed dated 16.3.1995 executed by one Shri N.Bylappa in favour of jointly defendants No.1 and 2 over the item No.3 of the suit schedule properties is not binding on the plaintiffs;

- to declare that the release deed dated 24.10.2001 executed by the defendant No.1 in favour of defendant No.2 in relation to 3^rd item of the suit schedule property is a concocted document;

- to declare that the registered gift deed dated 24.02.2010 executed by defendant No.2 in favour of defendant No.3 in relation to item No.3 of the suit schedule properties, as null and void;

- for partition and separate possession of their legitimate share in the suit schedule properties.

3. The defendant No.3 entered appearance and filed an application to reject the plaint stating that there is no cause of action to file the suit and that the suit filed is barred by limitation.

4. Sri Rajesh Mahale, learned senior counsel representing the counsel for the petitioner submits that alienation of item No.3 suit schedule property is prior to 20.12.2004, and therefore the alienation of the item No.3 is covered by the proviso to sub-section (1) of Section 6 of the Hindu Succession Act , 1956.

4.1. The learned counsel further argues that items No. 1 and 2 of the suit schedule properties were acquired by the defendant No.1 under a partition effected. The plaint averments discloses that items No.1 and 2 were given by Appayanna to the defendant No.1, and therefore, the properties acquired by the defendant No.1 in relation to item No.1 and 2 of the schedule properties are self acquired properties, and the plaintiffs have no right, claim share in the subject properties during the life time of the dens

4.2. In para 5 of the plaint, the plaintiff has categorically admitted that out of the joint family nucleus, the defendant No.1 purchased the item No.3 property under the registered sale deed dated 15.3.1990. He further argues that plaintiff in para 5 of the plaint clearly averred that item No.3 was purchased out of the joint family nucleus by selling Sy.No.33/1 and house property. He further argues that the plaint averments clearly discloses that item no. 3 properties was jointly purchased in the name of defendant No.1 and father of defendant No.2 and the release of 50% share held by defendant No.1 and thereafter defendant No.1 who was absolute owner to the extent of 50% each share in item No.3 released his share in favour of defendant No.2 by executing the release deed dated 24.10.2001

4.3. Therefore, the plaint averments clearly discloses that the suit schedule properties are the absolute properties of the defendant No.1 and during his life time, the plaintiffs have no right to claim share in the subject properties.

In support, reliance is placed on the following:

i. M/s. Durga Projects and Infrastructure Pvt Ltd. v. Sri S. Rajagopala Reddy and others, ILR 2019 KAR 4739,

ii. Smt Lokamani and Others v. Smt. Mahadevamma and Others, 2015 (4) KCCR 3091 (DB),

iii. Dyamanna v. Assistant Commissioner/ Land Acquisition Officer, W.P. No. 112567.2017,

iv. Raghvendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs, AIR 2019 SC 1430,

v. Sadeppa S/o Ningappa Pachapur, (since deceased) by LRs and Others v. Gangavva @ Shantavva and Others, 2022 (1) Kar LR 49 (DB),

vi. Smt. Hemalatha v. K.H. Srinivasan and Others, 2023 (1) Kar LJ 484

vii. Elumalai alias Venkatesan and another v. M. Kamala and Others and Etc., AIR 2023 SCC 659,

viii. Muridhar an