Highway, Bani Prak, Jaipur. vs Kartik Bajoria Son Of Shri Arvind Kumar Bajoria, Aged

Judgment

2. Versus ----Petitioner Kartik Bajoria Son Of Shri Arvind Kumar Bajoria, Aged About 40 Years, Resident Of Flat No. 701, Pearl Palacia, Takhteshahi Road, Moti Doongri , Jaipur (Rajasthan) And Presently Residing At Plot No. 4, Major Durgadas Colony, Bhawani Singh Marg, Jaipur (Rajasthan). Vinayak Bajoria Son Of Shri Arvind Kumar Bajoria, Aged About 31 Years, Resident Of Flat No. 701, Pearl Palacia, Takhteshahi Road, Moti Doongri , Jaipur (Rajasthan) And Presently Residing At Plot No. 4, Major Durgadas Colony, Bhawani Singh Marg, Jaipur (Rajasthan) Through Power Of Attorney Holder Smt. Archana Bajoria Wife Of Shri Arvind Kumar Bajoria, Aged About 66 Years, Resident Of Flat No. 701 Pearl Palacia, Takhteshahi Road, Moti Doongri, Jaipur (Rajasthan) And Presently Residing At Plot No. R, Major Durgadas Colony, Bhawani Singh Marg, Jaipur (Rajasthan). ----Respondents For Petitioner(s) : Mr. Nakul Jain For Respondent(s) : Mr. Rajesh Maharshi with Mr. Devanshu Saini HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 09/05/2025 Order

1. Instant revision petition is preferred by petitioner defendant aggrieved from order dated 22.03.2021 in civil suit No.111/2020 passed by learned Additional District Judge No.7, Jaipur Metro-II whereby an application under Order VII Rule 11 CPC was dismissed.

2. Learned counsel for petitioner defendant while placing reliance upon grounds of revision petition submitted that plaintiffs respondents are sons of petitioner defendant and they have filed a [2025:RJ-JP:23051] (2 of 19) [CR-99/2022] suit for partition, rendition of account and permanent injunction. Learned counsel while referring pedigree of the family has submitted that Shri Krishan Bajoria (died on 11.03.1993), father of present petitioner married to Smt. Lalita (died on 25.01.2020) And they were blessed with 3 daughters and 2 sons and out of these one sister of present petitioner Aruna has expired on

06.05.2020. He further submitted that before death, late Shri Krishan Bajoria has executed a will on 18.01.1993 in favour of Smt. Lalita for all his movable and immovable assets and Smt. Lalita has executed a registered will bequeathing her movable and immovable assets in favour of present petitioner. He further submitted that present petitioner is an absolute owner of the

property inherited by him after death of Smt. Lalita Bajoria in accordance with will dated10.09.2012. He also submitted that none of the legal heirs of Shri Krishna or Smt. Lalita were made or arrayed as a party defendants in the suit to claim partition, rendition of account and permanent injunction. He further submitted that during lifetime of father of the plaintiffs, they cannot claim partition of the properties inherited by living father. He further placed reliance upon judgement in case of Rohit Chauhan Vs. Surinder Singh and Ors AIR 2013 SC 3525 and submitted that the suit filed by the plaintiffs is not maintainable and same is liable to be dismissed. He further placed reliance upon judgement in case of Sagar Gambhir Vs. Sukhdev Singh Gambhir and Ors. MANU/DE/0541/2017, Devender Kumar Since Deceased through LRS Vs. Aruna Bakshi and Ors. 2023 DHC -DB and submitted that there is no presumption that [2025:RJ-JP:23051] (3 of 19) [CR-99/2022] the estate is joint or property belongs to a Hindu undivided or joint family. He further submitted that there is no presumption that the business standing in the name of any of member of joint family is a joint family business. He further submitted that a person who brings a case has to show the fact as claimed by him so as to continue the civil suit before the Civil Court. He further referred judgement in case of Amar Saxena Vs. Aashray Saxena (S.B. Civil Revision Petition No.15/2018 order dated 16.05.2024) and submitted that in identical matter while considering a revision petition against order of dismissal of application under order VII Rule 11 CPC the revision petition was allowed and suit was rejected. He further referred the written submissions and submitted that the principle of law as declared by Hon’ble Supreme Court clearly shows that if a suit is frivolous and it is ultimately going to waste time of the Court then same has to be rejected at this stage.

3. Learned counsel further referred order dated 06.09.2023 passed the by learned Single Judge in Misc. Petition No.120/2023 by the Bombay High Court in matter relating to testamentary succession of the properties claimed in the suit. He further referred a copy of order dated 11.07.2024 in appeal (L) No.29897/2023 passed by the Division Bench of the High Court of Bombay in a matter relating to testamentary succession in relation to present properties. He further referred the judgement in case of Commissioner of Wealth Tax, Kanpur and Ors. Vs. Chander Sen and Ors. MANU/SC/0265/1986, Yudhister Vs. Ashok Kumar MANU/SC/0525/1986 and [2025:RJ-JP:23051] (4 of 19) [CR-99/2022] Uttam Singh Vs. Saubhag Singh and Ors. MANU/SC/0256/2016 and submitted that the suit filed by sons against father for partition of ancestral property is not maintainable in view of provision of the Hindu Succession Act,

1956. He further referred judgement in case of T. Arvindandam Vs. T.V. Satyapal and Ors. MANU/SC/0034/1977, Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (dead) through Lrs MANU/SC/02252012 and Gangamma and Ors. Vs. G. Nagarthnamma and Ors, MANU/SC/118/2009, S.P. Chengalvarya Naidu (Dead) by LRs Vs. Jagannath (Dead) by Lrs and Ors. MANU/SC/0192/1994 and Kishore Samrite Vs. State of UP and Ors. MANU/SC/0892/2012 and submitted that plaintiffs have filed a suit to claim partition of joint Hindu family properties but without disclosure about creation of joint Hindu family and acquisition of status of coparcener in HUF by plaintiffs, suit is not maintainable. He also submitted that the plaint itself is vague and ambiguous and filed without disclosing proper facts and arraying proper parties. He also submitted that the plaintiffs have included all properties which were acquired in individual capacity and without arraying the legal heirs of Late Shri Krishan and Late Smt. Lalita a suit is filed for partition. He also submitted that proceedings relating to testamentary succession is already decided by the Bombay High Court. He further submitted that plaintiffs have concealed the material facts and concealment amounts to fraud. He further submitted that plaintiffs are no entitled to seek any partition and suit is not maintainable. At last, he submitted [2025:RJ-JP:23051] (5 of 19) [CR-99/2022] that the trial court has committed serious error while dismissing application under Order VII Rule 11 CPC.

4. Aforesaid contentions were opposed by learned counsel for respondents plaintiffs and submitted that plaintiffs have filed a civil suit for partition, rendition of account of family business and also for injunction. He further submitted that the properties inherited by petitioner defendants from the grandfather and grandmother of respondents fall within definition of ancestral property as these properties are not self acquired properties of present defendants. He further referred the genesis of Mitakshara Hindu law and submitted that the plaintiffs have clearly pleaded and set up a case as member of HUF, which is sufficient to maintain a civil suit for partition. He also submitted that it is not necessary for the plaintiffs to give details or describe the evidence in the plaint. He further submitted that if some of the coparcener or other members of family were not made as a party then it is a curable defect and same can be considered during pendency of civil suit and it is not a ground to reject a plant under Order VII Rule 11 CPC. He further submitted that if any fact is required to be mentioned or a person is required to be impleaded then all these are matters to be considered during pendency of civil suit but not at this stage. He further referred judgment in case of Vinita Sharma Vs. Rakesh Sharma (2020) 9 SCC 1 and submitted that there is presumption of HUF and a suit for partition is maintainable before civil court and trial court has not committed any error while placing reliance upon a larger bench judgment of [2025:RJ-JP:23051] (6 of 19) [CR-99/2022] Hon’ble Supreme Court at the time of dismissal of application under Order VII Rule 11 CPC.

5. Learned counsel for respondent while referring judgments in cases of V.D. Dhanwatey v. CIT MANU/SC/0193/1967 Shyam Naraya Prasad v. Krishna Prasad (2018) 7 SCC 464, Vinita Sharma v. Rakesh Sharma and Ors. (2020) 9 SCC 1 Adiveppa and Ors. v. Bhimappa and Anr. 2017 (9) SCC 586 Sunil Kumar and Anr. v. Ram Prakash and Ors. (1988) 2 SCC 72 and Bhagwant P. Sulakhe v. Digamber Gopal Sulakhe 1986 (1) SCC 366 and submitted that any property acquired by using joint family asset always vests in HUF and the property inherited from father’s father or great grandfather is ancestral property. He further submitted that if there is no co- parcenor only then the property received in inheritance can be considered as self-acquired property but not otherwise. He further submitted that both the respondents plaintiffs have a birth right as a co-parcenor in the HUF and joint family property left by their grandfather and grandmother. He also referred the legal position and submitted that there is a presumption as regard to joint status of family and joint property. He further referred the judgments in cases of Sheela Devi v. Lal Chand AIRONLINE 2006 SC 237, M. Yogendra v. Leelamma N AIRONLINE 2009 SC 499, Smt. Sitabai and Anr. v. Ramchandra (1969)2SCC544, Dharma Shamrao Agalawe v. Pendurang Miragu Agalwe and Ors. 1988 (2) SCC 126, Sundaram Maistri v. Harasimbhulu Maistri and Anr. (1902)ILR 25MAD149, Rohit Chauhan v. Surinder Singh and Ors.2013 [2025:RJ-JP:23051] (7 of 19) [CR-99/2022] (9) SCC 419, and S. Sampoornam v. C.K. Shanmugam MANU/TN/2426/2022 and submitted that petitioner defendant has not acquired any status as self acquired property rather the property inherited by him is joint family property and he takes the property on behalf of other co-parcenors. He further referred judgment in case of Girja Bai v. Sadashiv MANU/PR/0097/1916; Kawal Nain v. Prabhulal MANU/PR/0029/2017; Ramalinga v. Narayana AIR 1922 PC 201 and Suraj Narain v. Iqbal Narain MANU/PR/0020/1912 and submitted that any member of joint family is entitled to institute a suit for partition which clearly signifies that member has intention to separate from the family. He further submitted that after disclosing intention, the respondents plaintiffs have filed a suit for partition and same is maintainable before the trial court.

6. Learned counsel has further referred judgments in cases of Sukruti Dugal v. Janhavi Dugal RFA No.86 of 2019, Kamala and Ors. v. K.T. Eshwara Sa and Others (2008) 12 SCC 661, Edelco Housing and Industries Ltd. v. Ashok Vidyarthi and Ors. 2023 INSC 1043 Shakti Bhog Food Industries Ltd. v. Central Bank Of India AIR 2020 SUPREME COURT 2721; Srihari Hanumandas Totala v. Hemant Vithal Kamat AIR 2021 SUPREME COURT 3802, Sukh Ram v. Surtu Devi 2012 AIR, HP 0127; and submitted that while considering application under Order VII Rule 11 CPC, it is duty of the court is to see averment in the plaint and no amount of defence or any other material to plaint can be considered by the court. He also [2025:RJ-JP:23051] (8 of 19) [CR-99/2022] submitted that if there is any dispute about the facts then a suit cannot be rejected under Order VII Rule 11 CPC. He further submitted that objection raised by petitioner defendant are mixed question of fact and law and requires consideration after framing issues and recording evidence. He further referred judgments in case of Jamaali Banu v. Smt. Vikram Kanwar (S.B. Civil Writ Petition No.11080/2015), C.S. Sundaresha v. C.S. Ananthalakshmi 2019 (2) CCC 0455, Madanuri Sri Rama Chandra Murthy v. Syed Jalal 2017 (13) SCC 174 and Nathu Ram Seth v. Poonam Seth and Ors 2013 (2) WLN 249 and submitted that the court cannot travel beyond averment in the plaint and on the basis of perusal of plaint if suit is maintainable then same cannot be rejected under Order VII Rule 11 CPC. He also referred judgments of Jai Mahal Hotels Pvt. Ltd. v. Devraj Singh and Ors.2016 (1) SCC 423 and Lt. Col. Hargobind Singh (Retd.) v. Hargursharan Singh AIR 2017 PUNJAB AND HARYANA 3 has submitted that a serious disputed question is raised in civil suit and same requires consideration only after framing issue and recording the evidence.

7. Heard learned counsel for the parties and perused the entire record. Also considered the written submissions of both the parties and also perused the judgment as referred by them.

8. Brief facts of the case giving rise to institution of instant revision petition are that respondents plaintiff filed a suit for partition, rendition of account and permanent injunction against the petitioner (defendant) alleging that desputed properties belong to HUF of Late Shri Krishan Bajoriya, grandfather of [2025:RJ-JP:23051] (9 of 19) [CR-99/2022] plaintiffs. The plaintiffs have filed a suit against their own father, who is present petitioner before this Court. During pendency of this civil suit, an application under Order VII Rule 11 CPC is filed by present petitioner and same was dismissed, hence this revision petition.

9. The basic question before us is whether a suit filed by sons of present petitioner is maintainable when their father is alive and the sons are seeking partition of the properties left/acquired by Late Shri Krishan Bajoriya. The plaintiffs made an averment that Shri Krishan Bajoriya has HUF and plaintiffs being member of HUF has a right as co-parcenor by virtue of birth in the family. It is also on record that all legal heirs of Shri Krishan Bajoriya were not arrayed as defendants. Admittedly mother of the plaintiffs having serious matrimonial dispute with present petitioner and she is not residing with petitioner defendant. The objection raised before us is invocation of power under Order VII Rule 11 CPC to reject the suit as no cause of action accrued against the defendant and also non-maintainability of suit, against the provisions of Succession law.

10. Order VII Rule 11 CPC deals with the grounds for rejection of plaint aiming to prevent frivolous or defective suits. The provision enables the Court to reject a plaint, if certain conditions are satisfied. The provision of Order VII Rule 11 CPC is reproduced as under:- Rejection of plaint— The plaint shall be rejected in the following cases:— (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to [2025:RJ-JP:23051] (10 of 19) [CR-99/2022] correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law : (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provision of rule 9: “Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp- paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

11. In case of T. Arivandandam vs. T.V. Satyapal, (1977) 4 SCC (1) 467, Hon’ble Supreme Court while examining the aforesaid provision has held that the trial court must remember that if on a meaningful and not a formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created an illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party under Order X of the Code.

12. The object of the said provision is further considered by Hon’ble Supreme Court in Sopan Sukhdeo Sable vs. Assistant Charity Commissioner : (2004) 3 SCC 137 and in Popat and [2025:RJ-JP:23051] (11 of 19) [CR-99/2022] Kotecha Property vs. State Bank of India Staff Association, (2005) 7 SCC 510, and held that no court shall permit the plaintiff to unnecessarily protract the proceedings in a suit in case the suit does not disclose a cause of action or barred by any law or law of limitation.

13. In case of Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557 that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit i.e. before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendants in the written statement would be wholly irrelevant at that stage.

14. Hon’ble Supreme Court in case of Dahibhen Vs. Arvindbhai Kalyanji Bhanusali through LRs and Ors. 2020 SCC Online (SC) 562 while dealing with an appeal against an order allowing rejection of a suit at the threshold, had occasion to consider various precedents to discuss the intent under Order VII Rule 11 of CPC. Hon’ble Supreme Court has observed that if no cause of action is disclosed in the plaint, or if the suit is barred by law, court would not permit protraction of the proceedings and it would be necessary to put an end to the shame litigation so that further judicial time is not wasted.

15. After placing reliance upon Azhar Hussain Vs. Rajiv Gandhi 1986 SCC (SUPP) 315, Hon’ble Supreme Court opined [2025:RJ-JP:23051] (12 of 19) [CR-99/2022] that the entire purpose of conferment of such power is to ensure that a litigation, which is meaningless and bound to prove abortive should not be permitted to occupy the time and space of the Courts. The power on the Court to terminate a civil action is, however, a drastic one, but the conditions enumerated in Order VII Rule 11 CPC are required to be strictly adhered to.

16. Hon’ble Supreme Court while dealing with such an application seeking rejection of a plaint clarified that while determining any application filed under Order VII Rule 11 CPC, the court should restrict itself to the plaint and should not go into the detail facts as provided under the written statement or even in the application filed for rejection of plaint. While scrutinizing the averments in the plaint, the Court can read documents annexed and relied upon in the plaint.

17. Order VII Rule 11(d) of CPC provides that a plaint should be rejected if the suit is barred by any law. Hon’ble Supreme Court in case of Ramisetty Venkatanna Vs. Nasyam Jamal Saheb 2023 INSC 458 has observed that plaint should be rejected under Order VII Rule 11 (a)(d) of CPC if it is vexatious, illusory cause of action and barred by law.

18. In case of Sukruti Dugal v. Janhavi Dugal (supra) Kamala and Ors. v. K.T. Eshwara Sa and Others (supra), Edelco Housing and Industries Ltd. v. Ashok Vidyarthi and Ors. (supra), Shakti Bhog Food Industries Ltd. v. Central Bank Of India (supra); Srihari Hanumandas Totala v. Hemant Vithal Kamat (supra), Sukh Ram v. Surtu Devi (supra) it was held that at the stage of invocation of power under [2025:RJ-JP:23051] (13 of 19) [CR-99/2022] Order VII Rule 11 CPC only averment in plaint are required to be seen and no amount of evidence can be looked into. At the stage of consideration of application under Order VII Rule 11 CPC the court cannot look into the merits of the matter.

19. In case of Sukh Ram v. Surtu Devi (supra), C.S. Sundaresha v. C.S. Ananthalakshmi (supra), Madanuri Sri Rama Chandra Murthy v. Syed Jalal (supra) and Nathu Ram Seth v. Poonam Seth and Ors (supra) it was held that at the stage of decision of application under Order VII Rule 11 CPC, court cannot reject a suit after drawing a conclusion that joinder of necessary party is important and if court comes to a conclusion then it may direct to amend the cause title but cannot straighaway reject a plaint. Similarly if there is a mixed question of facts and law then plaint cannot be rejected by invoking provision under Order VII rule 11 CPC.

20. In case of Jai Mahal Hotels Pvt. Ltd. v. Devraj Singh and Ors. (supra) a seriously disputed question of title can be decided by a civil court after recording the evidence. In case of Lt. Col. Hargobind Singh (Retd.) v. Hargursharan Singh (supra) it was held that passage of time does not extinguish right of owner who is out of possession of joint property except in event of complete ouster or abandonment.

21. In case of John Kennedy & Anr. vs Ranjana & Ors 2014 (15) SCC 785 it was held that if a suit for partition whether right of partition is available or not as per law the issue can be decided after pleadings are complete and evidence is adduced and a suit cannot be dismissed under Order VII Rule 11 CPC. [2025:RJ-JP:23051] (14 of 19) [CR-99/2022]

22. Having considered the judgments as referred hereinabove, it is settled proposition of law that a suit can be rejected when it does not disclose a cause of action or barred by any law. While considering the application under Order VII Rule 11 CPC, the court can have meaningiful reading of plaint which includes perusal of documents submitted or relied by plaintiffs in support of plaint. Except these two grounds as mentioned in Rule 11 (a) and (d) of Order VII CPC, a plaint cannot be rejected straightway.

23. The facts of the case clearly indicated that plaintiffs have filed a suit for partition against their own father. We are not considering the objection of petitioner defendant that other legal heirs of Late Shri Krishana and Late Smt. Lalita Bajoriya were not arrayed as a defendant. During course of trial of civil suit, if Court is of the opinion that such person(s) are necessary and proper parties then the court may direct for adding them as defendant(s). A suit cannot be rejected only on this ground that 2 sisters, 1 brother and legal heirs of third sister (deceased) of petitioner defendant were not arrayed as defendants to seek partition of properties of HUF.

24. This court has considered identical issue in case of Amar Saxena Vs. Aashray Saxena (supra) and after placing reliance upon judgment in case of Commissioner of Wealth Tax, Kanpur and Ors. Vs. Chander Sen and Ors. (supra) observed that issue of succession of intestate male is governed under the provision of Section 8 of Hindu Succession Act. After considering judgment in case of Uttam Singh Vs. Saubhag Singh and Ors. (supra) and Radha Bai vs Ram Narayan AIRONLINE 2019 SC [2025:RJ-JP:23051] (15 of 19) [CR-99/2022] 1521 held that in case of intestate succession the property of a Hindu male devolve upon heirs on the basis of Section 8 of Hindu Succession Act and present plaintiffs are sons of son and not sons of predeceased son, so they are entitled to claim share by filing a suit for partition.

25. The properties were acquired by Shri Krishan Bajoriya, grandfather of plaintiffs who transferred the same by Will dated

18.01.1993 to Smt. Lalita and after death of Krishan Bajoriya, Smt. Lalita has acquired property in the status of self-acquired. Later these properties were transferred to the petitioner defendant by registered Will dated 10.09.2012 again the status of property acquired by Lalita is self-acquired and for Smt. Lalita, the property is not vested as ancestral property. Smt. Lalita has executed a registered Will in favour of petitioner defendant. This petitioner defendant has referred order dated 06.09.2023 passed by learned Single Judge of the Bombay High Court and order dated

11.07.2021 passed by the Division Bench of the Bombay High Court. Since these are judicial decisions therefore they can be looked into by this court. Moreover, this litigation is between present parties at Bombay High Court and binding upon both the parties. The order dated 06.09.2023 clearly indicated that a reference of civil suit No.298/2020 was also made during arguments in misc. petition filed to cancel or revoke grant of probate of Will issued by the Bombay High Court on 15.06.2021 in testamentary petition No.1068/2020. The judgments referred before this Court clearly shows that a probate is also granted in [2025:RJ-JP:23051] (16 of 19) [CR-99/2022] favor of present petitioner after considering Will dated 10.09.2012 and challenge to this probate by the plaintiffs has been dismissed.

26. In case of of Wealth Tax, Kanpur and Ors. Vs. Chander Sen and Ors. (supra) Yudhister Vs. Ashok Kumar (supra), Uttam Singh Vs. Saubhag Singh and Ors. (supra) and Rohit Chauhan Vs. Surinder Singh and Ors. (supra) it is held that son’s son is not included in Class-I heir under Section 8 of Hindu Succession Act to inherit the property but son of pre-deceased is included as Class-I heir in Section 8 of Hindu Succession Act. Herein this case, plaintiffs have claimed that a HUF created by their grandfather Krishan Bajoriya and they are seeking partition to the properties vested in HUF or the properties arrayed from source of HUF.

27. There is no doubt about legal position and concept of HUF and co-parcernor and applicability of Mitraksha School of Law. Similarly a property acquired by income of joint family or arising from any other source of joint family then it is a property of joint family. The law also presumes jointness of a family and property. It is also a settled position that a person acquired right as coparcenor in HUF only by birth and not by any contract. It is also settled law that a coparcenor may seek partition of the undivided property among them but when a question of filing of partition suit against father then the right of sons against surviving father is not as forfeited as in case of son of pre-deceased.

28. Herein this case, the facts available on record clearly suggest that there is no incident of HUF and even the averment in plaint particularly, in para 1 a specific avement is made that Shri [2025:RJ-JP:23051] (17 of 19) [CR-99/2022] Krishana, karta (Manager) of HUF and after his death the properties were acquitted by his legal heirs including defendant. The plaintiffs have not mentioned about the details of other persons who acquired their share in the property left by Krishan Bajoriya. The plaintiffs have claimed that both the plaintiffs have ½ share in the properties mentioned in para 2. The plaintiffs have also mentioned that they have already left house of defendant and reside separately. After death of Lalita, the plaintiffs allegedly demanded partition and rendition of account. Herein this case the core issue is whether a suit can be filed by surviving sons against their surviving father. 29 We have considered judgments as referred hereinabove in light of Section 8 of Hindu Succession Act. In case of Surender Kumar Vs. Dhani Ram and Ors AIR 2016 Delhi 120 after considering Section 8 of Hindu Succession Act, a Co-ordinate Bench of Delhi High Court in case of absence of incident of HUF has allowed the application under Order VII Rule 11 CPC and rejected the suit. In case of Sagar Gambhir Vs. Sukhdev Singh Gambhir and Ors (supra) a Division Bench after considering bald assertions and institution of suit without proper cause of action in a mater relating to division of properties of HUF, allowed an application under Order VII Rule 11 CPC. In case of Devender Kumar Since Deceased through LRS Vs. Aruna Bakshi and Ors. (supra) considering provision of Hindu law in light of HUF it is held that a frivolous suit should not be adjudicated and should be nibbed at bud. The Delhi High Court after considering the case [2025:RJ-JP:23051] (18 of 19) [CR-99/2022] that only bald assertions were there and no specific averment were made dismissed the appeal.

30. We have considered entire material on record including bulky written submission of respondents and judgments as referred by them, but for sake of brevity, we are not reproducing their details. The core issue before us applicability of provision under Order VII Rule 11 CPC in given facts.

31. Having considered the provision under Section 8 of Hindu Succession Act and Schedule annexed with Act, it is apparent that respondents plaintiffs do not fall in any category of heir as mentioned in Class-I to claim property left by his grandparents. The plaintiffs have no locus to claim partition till his father is alive. We are not considering defence of petitioner defendant that he has already procured letter of probate about registered Will dated

10.09.2012 executed by his mother Smt. Lalita. A suit for partition can be maintained by a coparcenor but should not be son’s son. Herein the facts narrated in the plaint clearly shows that the plaintiff have not disclosed correct and real facts of the case rather they have made any bald assertions and averment in plaint.

32. After considering the judgments as referred by learned counsel for parties, it is clear that the petitioner defendant has raised a legal ground and able to show that plaintiffs have instituted a civil suit without any locus or cause of action. The plaintiffs have no right to claim partition till his father is alive. The trial court has committed serious error while dismissing the application under Order VII Rule 11 CPC. [2025:RJ-JP:23051] (19 of 19) [CR-99/2022]

33. The respondent plaintiffs are not entitled to get benefit of judgments as referred by them in their written submissions, therefore the revision petition is liable to be allowed.

34. In view of discussion made hereinabove, the instant revision petition is allowed and impugned order dated 22.03.2021 in civil suit No.111/2020 is hereby set aside. As a result, application Under Order VII Rule 11 CPC is allowed and suit preferred by plaintiffs is hereby rejected.

35. Misc. application, if any, stands disposed of.

36. No order as to cost. PREETI VALECHA /72 (ASHOK KUMAR JAIN),J