The High Court
Case Details
- 1 - NC: 2025:KHC:16606 CRP No. 588 of 2022 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE R DEVDAS CIVIL REVISION PETITION NO. 588 OF 2022 BETWEEN: 1. SRI N KRISHNA MURTHY S/O LATE SRI. NARASIMHAIAH, AGED ABOUT 87 YEARS, R/AT NO. 102, NARASIMHA APARTMENT 100/101, 8TH CROSS, IST MAIN TEMPLE ROAD, MALLESHWARAM, BANGALORE 560003. 2. SRI. BHARATH KRISHNAMURTHY S/O SRI. N KRISHNAMURTHY AGED ABOUT 42 YEARS, R/AT NO. 207, GREENAHALL RESIDENCY, NO. 50, PALACE ROAD, BANGALORE 560001 3. SRI. SHARATH KRISHNA MURTHY S/O SRI. N KRISHNA MURTHY AGED ABOUT 53 YEARS, R/AT NO. 34/193, SANKEY ROAD, SADASHIVANAGAR, BANGALORE 560 080 4. SRI. N NAGARAJA S/O LATE SRI. NARASIMHAIAH, AGED ABOUT 74 YEARS, R/AT NO. 248, 6TH CROSS, Digitally signed by JUANITA THEJESWINI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16606 CRP No. 588 of 2022 IST STGE, INDIRANAGAR BANGALORE 560038. 5. SRI. N DEVADATTA ALIAS DEVADATTA NAGARAJ, S/O SRI. N NAGARAJA AGED ABOUT 40 YEARS, R/AT NO. 248, 6th CROSS, IST STAGE, INDIRANAGAR BANGALORE 560038 6. SMT. B R ANASUYA W/O LATE SRI. N RAMAMURTHY AGED ABOUT 80 YEARS, R/AT NO. 2894, 11th CROSS, V V MOHALLA, MYSURU 570002 7. SMT. GEETHA B R W/O LATE SRI. K R BHEMASENA D/O LATE SRI. N RAMASWAMY, AGED ABOUT 63 YEARS, R.AT NO. 12, 7TH BLOCK, SRIRAMPURAM 3rd STAGE, MYSURU 570034 8. SRI. B R LATHA W/O SRI. C N PRASANNA D.O LATE SRI. N RAMASWAMY AGED ABOUT 60 YEARS, R/AT NO. 1946, 14TH MAIN IST CROSS, SRIRAMPURAM 3RD STAGE, MYSURU 570034 9. SRI. B R PRASANNA S/O LATE SRI. N RAMAMURTHY AGED ABOUT 60 YEARS, - 3 - NC: 2025:KHC:16606 CRP No. 588 of 2022 R/AT NO. 2849 11TH CROSS, VV MOHALLA MYSURU 570002
Legal Reasoning
(BY SRI. V.G. BHANUPRAKASH A/W SRI. ADITYA BHAT., ADVOCATES) AND: 1. SRI NARAYANA RAO M S S/O LATE SRI. M N SESHAGIRI RAO, AGED ABOUT 56 YEARS, R/AT NO. 17/1, 2nd CROSS, 7TH MAIN SRIRAMPURAM BANGALORE 560021 2. SMT. M S PADMA SREE W/O LATE SRI. Y G RAVI KUMAR, AGED ABOUT 58 YEARS, R/AT NO. 8 NEW NO. 15 SATHYA VILAS 1ST FLOOR, 6th CROSS, SWIMMING POOL EXTENSION, MALLESHWARAM BANGALORE 560003 (BY SRI. R B SADASIVAPPA., ADVOCATE) …PETITIONERS …RESPONDENTS THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 09.11.2022 PASSED IN OS.NO.5249/2021 ON THE FILE OF THE 17TH CITY CIVIL AND SESSIONS JUDGE, BANGALORE. DISMISSING THE PETITION FILED UNDER ORDER 7 RULE 11 (a) OF CPC AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - NC: 2025:KHC:16606 CRP No. 588 of 2022 CORAM: HON'BLE MR JUSTICE R DEVDAS ORAL ORDER The petitioners are the defendants in a suit in O.S.No.5249/2021 and they are aggrieved of the impugned order dated 09.11.2022 at Annexure-A, whereby their application under Order VII Rule 11(a) of the Civil Procedure Code, is rejected by the trial court. The respondents are plaintiffs No.1 and 2. 2. For the sake of convenience, the parties shall be referred to in terms of their ranking before the trial court. 3. All the parties to the suit trace their lineage to Sri.Narasimhaiah. Sri.Narasimhaiah had four sons and one daughter. It is stated in the plaint that in the year 1986, a partition deed was executed between the family members on 29.12.1986. One share fell to Sri.N.Narayana Prasad, the last of the sons of Sri.Narasimhaiah. Sri.N.Narayana Prasad died on 13.07.2017 while his wife Smt.Saroja had pre-deceased Sri.N.Narayana Prasad in the year 1997. It is also admitted fact that Sri.N.Narayana Prasad and - 5 - NC: 2025:KHC:16606 CRP No. 588 of 2022 Smt.Saroja had no children. After the death of Sri.Narayana Prasad, the property left behind by Sri.N.Narayana Prasad is the subject matter of the dispute in the suit. The suit is filed by the children of Smt.Vijayalakshmi, the only daughter of Sri.Narasimhaiah. However, it is also an admitted fact that Smt.Vijayalakshmi died on 27.11.1995 and her husband Sri.Sheshagiri Rao also died on 25.08.2016. Subsequent to the death of Sri.N.Narayana Prasad, defendant No.4, Sri.N.Nagaraja, the elder brother of Sri.N.Narayana Prasad along with his brother Sri.N.Ramamurthy executed a registered release deed on 09.02.2021 in favour of Sri.N.Krishnamurthy, defendant No.1. Defendant No.1, who acquired rights over the suit schedule properties, immediately executed a registered gift deed in favour of defendant No.2, who is the son of defendant No.1. Both the two registered documents viz., release deed dated 09.02.2021 and registered gift deed dated 09.02.2021 are also called in question in the suit. - 6 - NC: 2025:KHC:16606 CRP No. 588 of 2022 4. The main prayer in the suit is for partition and separate possession declaring 1/4th share in the suit schedule properties in favour of the plaintiffs. 5. The defendants entered appearance and have filed a written statement. Thereafter, defendant No.2 filed an application under Order VII Rule 11(a) of CPC, seeking rejection of the plaint on the ground that the plaint does not disclose the cause of action and that there is a defect in the suit and therefore the suit is liable to be dismissed at the threshold. Since the application having been rejected, all the defendants to the suit have filed the present Civil Revision Petition invoking Section 115 of CPC. Learned Counsel for the defendants submitted while pointing out to Section 8 of the Hindu Succession Act, 1956, that the provision provides a general rule for succession in case of properties left behind by the Hindu male. It is submitted that a property of a Hindu male dying intestate shall devolve according to the provisions of Chapter II of the Hindu Succession Act, 1956. Further, it provides that firstly, if there are Class – I heirs left behind - 7 - NC: 2025:KHC:16606 CRP No. 588 of 2022 by a Hindu male, then the relatives specified in class – I of the schedule provided in the Act would take all the properties left behind by the Hindu male. Secondly, if there are no Class - I heirs, then the properties would devolve on the Class - II heirs of the schedule. Further, it is pointed out from Section 9 of the Act that amongst the heirs specified in the schedule, those in Class-I shall take simultaneously and to the exclusion of all other heirs the property left behind by a Hindu male. In the absence of Class I heirs, those in the first entry in Class II shall be preferred to those in the second entry. Similarly, those in the second entry shall be preferred to those in the third entry and so on in succession. It is also pointed out from Section 11 of the Act, that the property of an intestate shall be divided between the heirs specified in any one entry in Class II of the schedule so that they share equally. Having regard to these provisions, it is submitted that it is very clear from the provision of law and the facts admitted and stated in the plaint that the plaintiffs being the children of Smt.Vijayalakshmi fall under Entry IV - 8 - NC: 2025:KHC:16606 CRP No. 588 of 2022 amongst Class II heirs and they will not have any right to claim in respect of the suit schedule properties, since defendants No.1 and 4, Sri N.Krishnamurthy and Sri N.Nagaraj, who are the brothers of Sri N. Narayana Prasad fall in Entry II of the schedule and they take the property to the exclusion of all other persons in Entry IV. Learned Counsel would therefore submit that the impugned order cannot be sustained, having regard to the admitted facts borne out from the plaint, that the plaintiffs have no right to seek for partition of the suit schedule properties, since the suit schedule properties have exclusively devolved on defendants No.1 and 4 who are the brothers of Sri Narayana Prasad. Defendants No.1 and 4 have executed the registered documents, since they have the exclusive rights over the suit schedule properties to the exclusion of all the children of Smt.Vijayalakshmi who is the pre- deceased sister of Sri Narayana Prasad. 7. Per contra, learned Counsel for the plaintiffs contended that the application under Order VII Rule 11(a) - 9 - NC: 2025:KHC:16606 CRP No. 588 of 2022 of CPC was filed by defendant No.2 alone and not by the other defendants. However, in the Affidavit filed along with the application, defendant No.2 claimed to be authorized by the other defendants to file the Affidavit and the application. Learned Counsel would therefore submit that when the application itself was filed only by defendant No.2, the plaint cannot be rejected, since such an application is not filed by the other defendants. It is further contended that the averment in the application is that the plaintiffs have not disclosed any cause of action to file the suit. However, the plaintiffs have clearly narrated the manner in which they have acquired rights over the suit schedule properties. They have also stated that no sooner the plaintiffs came to know of the registered release deed and gift deed dated 09.02.2021, cause of action arose for the plaintiffs and therefore, they have filed the suit seeking partition and separate possession of 1/4th share in the suit schedule properties. It is submitted that the suit is not barred by limitation, since the release deed and gift deed were executed and registered on 09.02.2021 - 10 - NC: 2025:KHC:16606 CRP No. 588 of 2022 and the suit is filed in the year 2021 itself. In this regard, learned Counsel for the plaintiffs sought to place reliance on a judgment of this Court in the case of Sri Vinayaka Residents Welfare Association Vs. M.Ramachandra And Others reported in ILR 2007 KAR 5282 where it was held that so long as the plaint reveals some cause of action which may require determination, the plaint cannot be rejected under Order VII Rule 11(a) of CPC at the initial stage. Similarly in Sri Medappa @ Shivalingappa @ Madiwalappa and Others Vs. Sri Madiwalappa and Others reported in ILR 2017 KAR 2496, it was held that while considering an application under Order VII Rule 11 for rejection of plaint, only the averments made in the plaint requires to be considered and not the defence taken by the defendants in the written statement. It was also pointed out that the Hon’ble Apex Court in the case of Soumitra Kumar Sen Vs. Shyamal Kumar Sen and Others reported in (2018) 5 SCC 644, has held that when a plea of res judicata is raised by the defendants, the averments and statements made in the written - 11 - NC: 2025:KHC:16606 CRP No. 588 of 2022 statement cannot be taken into consideration. It was held that the judgments in earlier cases are judicial records on basis whereof the defendants can succeed in getting the suit dismissed on the ground of res judicata. However, it was directed that to absolve the party from agony of prolonged litigation, the Trial Court is required to take up the issue pertaining to maintainability of suit at the first instance. It was also pointed out from Urvashiben And Another Vs. Krishnakant Manuprasad Trivedi (2019) 13 SCC 372 that for deciding the question of limitation, the Trial Court is required to record evidence and record a finding as to the date on which the plaintiff had notice. The issue of limitation being mixed question of law and fact, the same has to be considered only after examining the evidence that would be led by the parties. The learned Counsel would therefore submit that the plaint cannot be rejected at this stage when the plaintiffs have made out a cause of action for filing the suit. The defendants have also not denied the relationship between the parties. - 12 - NC: 2025:KHC:16606 CRP No. 588 of 2022 8. The learned Counsel would further point out from Satya Charan Dutta Vs. Urmila Sundari Dassi and Others reported in AIR 1970 SC 1714 that the Apex Court rejected the argument that the use of Arabic numerals is decisive of the point whether or not the heirs specified in Entry II of Class II succeeds simultaneously and equally. It is submitted that at any rate since the defendants have admitted the relationship and that the property left behind by one of their relatives viz., Sri Narayana Prasad is the subject matter of the litigation between the parties and after recording evidence, the Trial Court will have to render a finding regarding the rights of the plaintiffs to seek share in the properties left behind by Sri Narayana Prasad. At this stage, when no evidence is led by the parties, it would be impermissible for the Court to reject the plaint at the threshold. 9. Heard the learned Counsels for the defendants and plaintiffs and perused the petition papers. - 13 - NC: 2025:KHC:16606 CRP No. 588 of 2022 10. This Court finds that although defendant No.2 alone filed the application under Order VII Rule 11(a) raising a contention that there is no cause of action for the plaintiffs to have filed the suit, since they have no right in law to seek partition of the properties left behind by late Sri Narayana Prasad, nevertheless, the other defendants have also joined defendant No.2 in this Civil Revision Petition. 11. It is therefore clear that all the defendants are of the view that the plaintiffs have no legitimate right to seek partition of the suit schedule properties left behind by late Sri Narayana Prasad. It was therefore incumbent upon the Trial Court to have considered such a plea that was raised by defendant No.2 as to whether the plaintiffs have any right to seek partition of the suit schedule properties having regard to the provisions pointed out by the second defendant in the application filed under Order VII Rule 11(a) of CPC. - 14 - NC: 2025:KHC:16606 CRP No. 588 of 2022 12. A plain reading of the plaint makes it clear that late Sri Narayana Prasad died on 13.07.2017. In the year 1986, to be precise on 29.12.1986 there was a partition that took place amongst the family members i.e., the four sons and one daughter of late Sri Narasimhaiah, dividing the joint family properties/ancestral properties. One share fell to Sri Narayana Prasad, which is the subject matter of the suit. It is therefore clear from a plain reading of the plaint itself that Sri Narayana Prasad acquired rights over the suit schedule properties under partition deed dated 29.12.1986. Late Sri Narayana Prasad enjoyed the suit schedule properties till his death. Sri Narayana Prasad’s wife Smt.Saroja had pre-deceased Sri Narayana Prasad and she had died on 11.07.1997. It is also not disputed that Sri Narayana Prasad and Smt.Saroja had no issues. The question therefore is whether the plaintiffs being the daughters of Smt.Vijayalakshmi, the sister of Sri Narayana Prasad, have any right to claim in respect of the suit schedule properties, having regard to the provisions pointed out by the learned Counsel for the defendants. - 15 - NC: 2025:KHC:16606 CRP No. 588 of 2022 13. As rightly submitted by the learned Counsel for the defendants, Section 8 of the Hindu Succession Act, 1956, provides the general rules of succession in case of Hindu males. The order of succession is also provided in Section 8 vis-à-vis the Class I heirs, Class II heirs and the agnates and cognates, in that order. Section 9 provides that among the heirs specified in the schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs, all the properties left behind by a Hindu male. It also provides that if there is no Class I heir, then those in the first entry in Class II shall be preferred to those in the second entry. Similarly, those in the second entry shall be preferred to those in the third entry and so on in succession. Therefore, the said provision viz., Section 9 provides for the order of succession amongst the heirs in the schedule. Further Section 11 also clearly provides that insofar as Class II heirs are concerned, the property of an intestate shall be divided between the heirs specified in any one entry in Class II of the schedule so that they share equally. The decision in the case of Satya Charan - 16 - NC: 2025:KHC:16606 CRP No. 588 of 2022 Dutta (supra) referred to by the learned Counsel for the plaintiffs was a case where all the parties fell in the Entry II. It was therefore held that notwithstanding the numerical order provided in Entry II, all the heirs in Entry II take the property simultaneously. However, in the present case, it is clear that the plaintiffs fall under Entry IV, since the plaintiffs are Sri Narayana Prasad’s sister’s daughters. However, defendant Nos.1 and 4 fall in Entry II, being the brothers of late Sri Narayana Prasad. Therefore, defendants No.1 and 4 being the surviving brothers of late Sri Narayana Prasad, they take all the properties of late Sri Narayana Prasad to the exclusion of all other legal heirs in Entry IV. 14. That being the legal position, this Court is of the considered opinion that this is a case where the issue raised in the application filed under Order VII Rule 11(a), is a pure question of law and not a mixed question of law and fact. This issue could have been decided by the Trial Court without waiting for the parties to lead evidence. - 17 - NC: 2025:KHC:16606 CRP No. 588 of 2022 15. The word ‘cause of action’ as contemplated in Order VII Rule 11(a) of CPC, would also mean the right of the plaintiffs to seek the prayer made in the suit. Cause of action does not refer only to the point of time at which the right to sue arises for the plaintiffs. Cause of action would also mean and include the very right to sue. That right to sue, as being pointed out by the learned Counsel for the defendants, is not available for the plaintiffs, having regard to the provisions of law as noticed hereinabove. 16. In that view of the matter, this Court is of the considered opinion that the application filed by defendant No.2 under Order VII Rule 11(a) of CPC, could not have been rejected by the Trial Court. The purpose behind the provision in Order VII Rule 11 is to weed out unnecessary, frivolous litigation, and save precious judicial time for deserving cases. The point of law raised by defendant No.2 applies to all the other defendants also. The cause of action of the plaintiffs is no different in respect of the other defendants. - 18 - NC: 2025:KHC:16606 CRP No. 588 of 2022 17. Accordingly, the Civil Revision Petition is allowed. As a consequence, the application in I.A.No.3 filed by defendant No.2 under Order 7 Rule 11(a) of CPC is allowed and the plaint is rejected. Ordered accordingly. Sd/- (R DEVDAS) JUDGE DL/JT CT: JL