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2024 Supreme(Online)(Kar) 44811
KARNATAKA HIGH COURT
H.P.SANDESH, J
SRI RUDRA ACHARY – Appellant
Versus
MISS. SUSHMA PRIYA – Respondent
RSA 556 / 2024
SRI. CHANDRANATH ARIGA K., ADVOCATE; SRI. K.PRASANNA SHETTY, ADVOCATE FOR R1 AND R2; R3 TO R13 SERVED, UNREPRESENTED
Partition claims under Hindu Succession Act require proof of joint family property; individual property cannot be claimed as joint without evidence of blending.
Headnote:(A) Hindu Succession Act - Joint family governed by Mithakshara Law - Plaintiffs sought partition of ancestral properties, claiming undivided rights - Defendants contended properties were absolute property of their mother, acquired via partition - The Trial Court rejected the plaint under Order VII Rule 11(d) of CPC - The First Appellate Court reversed the decision, suggesting blending of individual property into joint family property. (Paras 2-10)
(B) Jurisdiction under Order VII Rule 11 - The court emphasized that the question of whether property is joint family property requires factual determination at trial, not merely from plaint averments. (Paras 8-9)
Facts of the case:
Plaintiffs, children of defendant No.2, sought partition of ancestral properties governed by Mithakshara Law, alleging defendants were attempting to defraud them by settling properties in favor of others. Defendants argued properties were absolute and separate due to prior partition.
Findings of Court:
The Trial Court correctly rejected the plaint as the property was determined to be separate and absolute, and plaintiffs had no right to seek partition during their father’s lifetime.
Issues: Whether the First Appellate Court was justified in reversing the Trial Court's rejection of the plaint based on potential blending of properties.
Ratio Decidendi: The court found that the First Appellate Court erred in suggesting that individual property could be blended into joint family property without proper pleading or evidence, affirming the Trial Court's ruling.
Result: Regular second appeal allowed; the First Appellate Court's decision set aside.
(PER: HON'BLE MR JUSTICE H.P.SANDESH) Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent with their consent.
2. The factual matrix of the case of the respondents/plaintiffs before the Trial Court while seeking the relief of partition that the plaintiffs and defendants are the members, sharers and constituted a joint family governed by Mithakshara system of inheritance and succession under the Hindu Succession Act . It is also contended that defendant no.2 is the father of the plaintiffs and since past some years, due to strained relationship with defendant No.2, the plaintiffs are residing separately from their father in the old family house with their mother. It is contended that defendant No.1 is the grandfather of the plaintiffs and is residing with his daughter i.e., defendant No.7 in her house nearby the house of the plaintiffs. The defendants are not having and NC: 2024:KHC:28433 RSA No. 556 of 2024 maintaining cordial relationship with the plaintiffs because of strained relationship between the plaintiffs and their father. It is contended that the suit schedule properties are the ancestral and joint family properties and hence, the plaintiffs are having undivided birth right as per the provisions of Hindu Succession Act . It is also contended that the partition deed is not binding on the plaintiffs.
Defendant No.1 is batting in favour of his other children and planning to settle the suit house property in favour of any of her children so as to deceive and defraud and to teach a lesson to the plaintiffs. Hence, defendant Nos.1 and 2 have no manner of right, title and interest to part with or create encumbrance upon the suit properties in which the plaintiffs are having undivided rights. Hence, the plaintiffs are entitled for the relief of partition in respect of the suit schedule properties.
3. In pursuance of suit summons, the defendants appeared and filed an application under Order VII Rule 11(d) of CPC contending that the very suit is not NC: 2024:KHC:28433 RSA No. 556 of 2024 maintainable and the same is barred under law and prayed to reject the plaint. The main contention urged in the application is that the plaintiffs have filed the suit for the relief of partition in respect of ‘A’ schedule properties. The case of the plaintiffs is that the plaint mentioned ‘A’ schedule properties are the ancestral family properties of joint family and the plaintiffs and defendants are the members of said joint family governed by Aliyasanthana Law of inheritance and therefore, the plaintiffs are entitle for share in the suit properties. It is contended that the plaintiffs have filed the suit suppressing the material facts that defendant Nos.2, 3, 7 and 11 in the suit are the children of defendant No.1 and his wife Gulabi Acharthi. It is contend that the suit ‘A’ schedule properties belonged to said Smt. Gulabi Acharthi on mooli right and she acquired absolute right, title and interest over the said properties as per registered partition deed dated 30.05.1990 entered between said Gulabi Acharthi, her mother Rakku Acharthi and others. The plaintiffs and other defendants and Gulabi Acharthi are admittedly governed by Mithakshara Law of NC: 2024:KHC:28433 RSA No. 556 of 2024 inheritance and therefore, Gulabi Acharthi in possession and enjoyment of entire suit schedule properties on absolute mooli right. The said Gulabi Acharthi died intestate on 15.08.1996 leaving behind her husband and children and all of them have got partitioned the property vide registered partition deed dated 06.06.2019 and by virtue of the said partition deed, the suit schedule properties divided by metes and bounds and hence, these properties are become the separate properties of husband and children of Gulabe Acharthi. Hence, it cannot be terms as the joint family properties. The properties of the Gulabi Acharthi is the absolute property as per Hindu Succession Act . During the lifetime of the fa
