Under the Hindu Succession Act, 1956, property inherited by a male Hindu is held in his individual capacity; consequently, the theory of birthright is extinguished, and a suit for partition by children against their father during his lifetime is not maintainable under the law.

Appearance:

ORDER

The present revision has been filed challenging the order Annexure P/1 dated 08.07.2022 passed by the trial court whereby the application filed by the petitioners/ defendants No. 1 and 2 for rejection of plaint under Order 7, Rule 11, CPC has been rejected.

2. The suit has been instituted by the plaintiffs who are daughters of deceased Govardhan in the lifetime of Govardhan who is present petitioner No. 1 and defendant No. 1 in the suit seeking declaration of share and partition with possession. An application for rejection of plaint was filed by the defendant No. 1 and 2 being the father of plaintiffs and brother of plaintiffs on the grounds that the suit has been filed during the lifetime of the defendant No. 1 who is the father of the plaintiffs seeking partition in the land which is in violation of Section 8 of Hindu Succession Act 1955 which declares the rules of succession of a male Hindu intestate and it was contended in the application that once the father of the plaintiffs was alive then the property would devolve on the father upon succession from the grandfather of the plaintiffs and would not devolve to the plaintiffs in the lifetime of defendant No. 1 and therefore the suit could not be maintained in view of Section 18 of Hindu Succession Act which provides for succession upon death of a Hindu male lying intestate. On these assertions it was sought in the application under Order 7 Rule 11 CPC that the plaint may be rejected.

3. The sole question that arises for determination in the present case is whether the suit was maintainable during the lifetime of the father of plaintiffs seeking partition. The counsel for the petitioner had relied on various judgments of this court and of the Hon’ble Supreme Court to contend that when a male Hindu even having interest in Mitaksara coparcenary property lies intestate after commencement of Hindu Succession Act then as per Section 6 (3) of Hindu Succession Act, the deceased's interest in coparcenary property would devolve by intestate succession under Section 8 and not by survivorship under Section 6. It is therefore argued that even if there is presumed to be any existence of coparcenary property, then also the plaintiffs could not maintain a suit during the lifetime of their father because as per plaint assertions, the plaintiffs seek birthright in the property, theory of which no longer survived even for Hindu males being sons and irrespective of the amendment of 2005, though the same law would apply to sons and daughters but even the son cannot file a suit for partition in lifetime of father and therefore the suit filed by the daughters during lifetime of father must suffer rejection of plaint being barred by Section 8.

4. The respondents/plaintiffs on the contrary had argued that in view of judgment of the Hon’ble Supreme Court in Srihari Hanumandas Totala vs. Hemant Vithal Kamat , 2021(9) SCC 99, the scope of application under Order 7 Rule 11, CPC is very limited and only the plaint averments are to be seen to decide application under Order 7, Rule 11, CPC and no assertions of the defendant can be taken into consideration. Therefore, it is argued that the application under Order 7, Rule 11 has rightly been rejected by the Trial-Court.

5. Upon hearing the rival parties and on perusal of the record, it is seen that the Trial-Court has rejected the application on the grounds that it requires to be adjudicated whether the suit property is an ancestral property or a coparcenary property and this issue can only be decided after adducing evidence and therefore it is not appropriate to reject the claim under Order 7, Rule 11, CPC.

6. By way