HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.1852 of 2024

ORDER

This Civil Revision Petition, under Article 227 of the Constitution India, is filed assailing the order, dated 05.03.2024, passed by the II Additional District Judge, Medchal-Malkajgiri District at Medchal in I.A.No.628 of 2023 in OS.No.1434 of 2016.

2. Heard Sri M.V.Pratap Kumar, learned counsel for the revision petitioner, and Sri V.Jagapathi, learned counsel for respondent Nos.1 and 2.

3. The revision petitioner is defendant No.17 and respondent Nos.1 and 2 are plaintiffs in the suit. For convenience, hereinafter, the parties will be referred to as arrayed in the suit.

4. The brief factual matrix of the case required for adjudication of the present case, is that the plaintiffs filed the aforesaid suit in O.S.No.1434 of 2016 to pass preliminary decree for partition and separate possession in respect of the suit schedule property and to allot 1/5^th share to each of the plaintiffs and also to declare the Gift deeds bearing document Nos.1133 and 1134 of 2006 as null and void and not binding on the plaintiffs.

5. During the pendency of the said suit, defendant No.17 filed an application- I.A.No.628 of 2023 to reject the plaint on the grounds of lack of cause of action, barred by limitation, non-joinder of necessary parties and payment of insufficient court fees.

6. In the affidavit, filed in support of the application, defendant No.17 averred that the dispute pertains to the property of one Sri Veera Reddy, who died in 1967, leaving behind four sons, including the plaintiffs’ father-late P.Balakrishna Reddy; that the property was partitioned among the sons through a settlement recorded in Lok Adalat in O.S.No.622 of 2011; that pursuant thereto, late P. Balakrishna Reddy, having acquired absolute rights, executed gift deeds in favour of his sons, in respect of his share, who, thereafter, sold the property to third parties. The plaintiffs, being daughters, have challenged the validity of these transactions, asserting coparcenary rights under the amended Hindu Succession Act.

7. Defendant No.17 further averred that the plaintiffs failed to produce any evidence to substantiate their claim and that, upon partition, the property ceased to be coparcenary property and became the absolute property of late P. Balakrishna Reddy, thereby giving him full rights of disposition and hence, the suit filed by the plaintiffs, seeking the relief of partition and declaration of gift deeds is void and without any merit. He further averred that the impugned sale deeds were executed in 2012, while the suit was filed only in 2016, i.e., beyond three years as prescribed under Article 58 of the Limitation Act and hence, the suit is barred by limitation.

8. Furthermore, defendant No.17 averred that the suit is bad for non-joinder of necessary parties, as the plaintiffs failed to implead third party purchasers who acquired the subject property from the developer and that the plaintiffs have undervalued the suit and paid the Court fee under Section 34(2) of the AP Court Fees Act, despite not being in possession of the property, instead of paying court fee under Section 34(1) thereof. On these grounds, the defendant sought rejection of the plaint.

9. A counter was filed by plaintiff No.1 claiming coparcenary rights under Section 6 of the Hindu Succession (Amendment) Act, 2005, asserting that the gift deeds executed by late P. Balakrishna Reddy in favour of his sons are void ab initio, and are not valid and binding on the plaintiffs, as the property remained undivided coparcenary property at the time of alienation. She further contended that 2005 amendment to Section 6 of the Hindu Succession Act prohibits such unilateral disposition of coparcenary property and that the cause of action arose only upon their father’s demise in August 2016 and therefore, the suit is within limitation. The plaintiffs further averred that the plaint discloses a valid cause of action for partition