Daughters hold rights to ancestral property despite birth after the grandfather's death, emphasizing the importance of legal standing and full trial.

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)

On perusing the impugned order, service of notice to respondent No.3 is dispensed with since service of notice to him is not required.

2. Heard the arguments.

3. The petitioner has filed this revision petition against the order dated 07.02.2018, passed by the Civil Judge and JMFC, Kalaghatagi, on the application filed under Order VII Rule 11 read with Section 151 of the Civil Procedure Code , 1908 (‘CPC’ for short), in O.S.No.206/2012.

4. The brief facts leading to this revision petition are that, plaintiffs 1 to 3 viz. Geeta and two others, have filed a suit for partition and separate possession of the suit schedule properties contending that the suit schedule properties are the ancestral properties. Defendant No.5 has appeared before the Court and filed his written statement. Issues were framed and when the case was posted for plaintiffs’ evidence, defendant No.5 filed application I.A.No.8 under Order VII Rule 11 read with section 151 of CPC, to reject the plaint on the ground that prior to birth of plaintiff No.1-Geeta, her grandfather Keerappa died on 11.03.1983. Plaintiff No.1 took birth on 10.04.1986. This clearly discloses as per the birth certificate of plaintiff No.1. As on the date of death of grandfather of plaintiff No.1, the plaintiff No.1 was not born. Hence, the plaintiffs have no right to claim against their father. Hence, the suit is not maintainable. The plaintiffs have filed their objection to the said application contending that the application is filed on false, frivolous and vexatious grounds. Therefore, the same is neither maintainable in law or on facts and the same is liable to be rejected.

5. Having heard the arguments of both the learned counsels, the trial Court has rejected the application I.A.No.8 filed under Order VII Rule 11 read with Section 151 of CPC assigning the following reasons.

“8. Point No.1: It is the suit filed by the plaintiffs for the relief of partition and separate possession of their legitimate share in the suit property and for the relief of declaration to declare that sale agreement obtained by defendant no.4 and 5 from defendant no.1 are null and void not binding on plaintiff share. 9. In pursuance to the suit summons defendant no.4 and 5 appeared through their respective counsel and filed written statement denying the entire averments made in the plaint. The defendant no.5 filed the written statement denying the relationship between plaintiffs and defendant no.1 and also the nature of the property. The defendant no.5 further contended that suit is filed in active collusion of plaintiffs and defendant no.1, the defendant no.1 has agreed to sell part of the suit property in order to meet his family necessities and accordingly entered into agreement of sale. Since defendant no.1 not come forward to execute the sale deed the defendant no.5 filed the suit specific performance and obtained the decree and sale deed is executed in favour of defendant no.5. Now the plaintiffs filed the suit for partition on false and frivolous grounds and same is liable to be dismissed.

10. During pendency of the suit when the case is set down for plaintiff evidence defendant no.5 filed present application seeking rejection of plaint. In the application it is stated that since plaintiff no.1 taken birth after death of her grandfather plaintiffs are not entitled to claim for partition against their father as per the proposition laid down by Hon'ble Apex Court in Uttam's case. The plaintiffs have contended that the suit properties was inherited by defendant no.1 from his father. The suit property is the ancestral and joint family property of plaintiffs, d