The court upheld the rejection of the plaintiffs' suit for partition, affirming that they lacked standing while their father was alive, as succession only opens after his death.

(PER: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel appearing for the appellants and the respondents.

2. The plaintiffs in O.S. No.602/2016 on file of the I Additional Senior Civil Judge, Nelamangala are before this Court. The suit for partition and separate possession by the plaintiffs was resisted by the NC: 2024:KHC:28571-DB RFA No. 2330 of 2023 defendants. The defendants filed an application under Order VII Rule 11 of the Code of Civil Procedure to reject the plaint on the premise that the plaintiffs have no cause of action to file the suit. The Trial Court has accepted the plea of the defendants and has rejected the plaint.

3. The brief facts necessary for the adjudication of the appeal can be summarised as under:

- One Saraswathi was the propositus. She died in the year 1997. She is survived by a son and a daughter. The first defendant is the son and 2nd defendant is the daughter of late Saraswathi. The suit is filed by grandchildren of Saraswathi through her son Balasubrahmanyam.

The plaintiffs pleaded that the suit property is the self acquired property of Saraswathi. After her demise, the property devolved on the children of Saraswathi. Defendants No.1 and 2, the children of Saraswathi claimed that they acquired right over the property under the Will executed by Sarawathi.

Thus, it is the case of the defendants that the property was the self acquired property of Saraswathi and plaintiffs who are the children of defendant No.1 and grandchildren of Saraswathi do not acquire any right over the property during the life time of their father Balasubramanyam.

NC: 2024:KHC:28571-DB RFA No. 2330 of 2023 The Trial Court has also referred to Section 15 of the Hindu Succession Act and has concluded that the property being the self acquired property of Saraswathi, grandchildren of Saraswathi are not entitled to claim partition during the lifetime of their father. In substance, the Trial Court has held that plaintiffs have no right to claim share in the property of Sarawathi inherited by Sarawathi's children.

4. Learned counsel appearing for the appellants would contend that an important factor, the death of the first defendant i.e. the son of Saraswathi is not brought to the notice of the Trial Court.

It is his submission that he died during the pendency of the suit and succession would open after his death. Thus, suit is maintainable.

5. Learned counsel for the respondents would contend that defendant No.2 had executed a registered gift deed in favour of her daughter in the year 2007 and defendant No.1 has executed a relinquishment deed in favour of defendant No.2 in the year 2015.

Thus, he would contend that since defendant No.1 died in the year 2021, by the time he died, he had lost the right to question the registered relinquishment deed of the year 2015. Thus, he would contend that succession would not open in favour of appellants as the suit property is covered by the registered relinquishment deed.

NC: 2024:KHC:28571-DB RFA No. 2330 of 2023

6. This Court has considered the contentions raised at the bar.

7. The following point would arise for consideration:

(i) Whether the Trial Court is justified in holding that plaintiffs had no right over the suit schedule property as on the date of the suit and is justified in rejecting the plaint?

8. It is settled position of law that when it comes to rejection of plaint , that plaint averment alone is to be taken into consideration. On going through the plaint averments, it is very much evident that the plaintiffs have admitted that the property belonged to Saraswathi, their grandmother. Saraswathi died in the year 1997. It is the case of the defendants that Saraswathi executed a Will. The plaintiffs even if dispute the execution of the Will, the position does not change insofar as the title of Saraswathi's children.

Even if it is a case of non-testamentary succession, defendants No.1 and 2 will be her heirs. Defendants No.1 and 2 would inherit the property of Saraswath