Dilip Kumar Jain Vs Smt. Shobharani Jain and Others

U.C. Maheshwari, J.

The appellant/plaintiff has preferred this appeal u/s 96 of CPC being aggrieved by the order dated 24-2-1998 passed by District Judge, Jabalpur in Civil Original Suit No. 43-A/1996 whereby suit for partition, possession, declaration and perpetual injunction has been dismissed by allowing the application under Order 7, Rule 11 of CPC filed by respondent Nos. 1 2, 4 and 5.

The facts giving rise to this appeal are that the plaintiff, the son of respondent No. 3 and nephew of respondent Nos. 2, 4 and 5 and grand-son of respondent No. 1, filed the present suit for partition, possession, declaration and perpetual injunction regarding house property hearing house No. 569 (Old No. 664, 665 and 666), situated at Bhaldarpura, Sarafa Ward, Jabalpur. According to the plaint assertions late Mool Chand Jain died before 90 years and his son Lalchand Jain, died before 50 years leaving behind three sons namely, Late Pannalal Jain, Prem Chand Jain and Shikhar Chand Jain. The ancestral property was divided by Late Lal Chand Jain in his lifetime amongst his sons, Panna Lal and Premchand were given some other properties while house in dispute was given to the youngest son Late Shri Shikhar Chand Jain who died on 5-12-1958 and thereafter being his legal representatives his wife respondent No. 1, Smt. Ladli Bahu and sons respondent No. 2 Padman Kumar; respondent No. 3 Pushp Kumar Jain, respondent No. 4 Pawan Kumar Jain and respondent No. 5 Chand Kumar Jain inherited the said house. It has also been pleaded that this being the ancestral property they all have equal shares being coparcener. It is further pleaded that Lalchand Jain had purchased this house on 28-1-1937 and on his demise it has become ancestral property.

It is further set forth in the plaint that after demise of said Shikhar Chand Jain on 30-3-1972 a document which has been nomenclatured as "Dastwari" (Document of relinquishment) was executed by respondent Nos. 2 to 5 in favour of respondent No. 1 and same was registered as per prescribed procedure and subsequently a plan was prepared by respondent Nos. 1, 2, 4 & 5 to transfer the property against the interest of respondent No. 3 and same was implemented in different parts and as alleged before three years three shops of disputed house were sold for consideration of rupees three lacs by executing a document of transfer by respondent No. 1. A part of this house was shown to be purchased by respondent No. 4 by way of registered deed dated 2-3-1989 and consideration- was arranged by availing loan from his employer M.P.E.B. at the subsequent stage other part of the property which was allegedly the share of respondent No. 5 was also sold for consideration of rupees eight lacs and as per pleadings respondent Nos. 1, 4 and 5 have already disposed of their shares and remaining property is only of the branch of respondent Nos. 2 and 3.

It is case of the plaintiff/appellant that he was born on 13-10-1977 and after attaining majority he demanded his share by partition from respondent and same was not given then the present suit was filed on 24-6-1996 for declaration, partition, separate possession and perpetual injunction.

In the written statement filed by respondent No. 3, father of the appellant has admitted the claim of the appellant and accepted the execution of the deed of relinquishment in favour of his mother, respondent No. 1 and also admitted the date of birth of the appellant and pleaded that he has no objection in decreeing the suit in favour of the appellant.

The respondent Nos. 1, 2, 4 and 5 instead filing the written statement, filed an application dated 11-2-97 under Order 7, Rule 11 of CPC averring that the appellant is claiming his share being son of respondent No. 3 and as such his claim is through his father and according to pleadings of the appellant it is an admitted fact that respondent No. 3 had already executed a document dated 30-3-1972 in favour of respondent No. 1 and relinquished his entire right, title, interest in the property in dispute and the said document being binding against the appellant, the plaint was liable to be rejected. It was further pleaded that the appellant being a son of respondent No. 3 has no independent cause of action for filing the suit as he has no right in law. It was also said that admittedly appellant was born on 13-10-1977 while the property had already been relinquished by his father, respondent No. 3 by virtue of registered relinquishment deed on 30-3-1972, i.e. before his birth. It has further been pleaded that the appellant has no cause of action to challenge the relinquishment deed executed in favour of respondent No. 1.

The appellant filed his reply to the said application on 14-3-1997 and pleaded that provision of Order 7, Rule 11 of C.P.C. was not applicable in view of cause of action mentioned in the plaint and the disputed questions could be decided only after recording the evidence of both the parties and prayed for dismissal of this application.

On consideration of abovesaid circumstances, the trial Court arrived at the conclusion that in view of the abovesaid relinquishment deed plaintiff being the son of respondent No. 3 had no right to challenge the same and claim the suit property and accordingly the application was allowed suit of the plaintiff/appellant was dismissed. Hence the appellant has knocked at the door of this Court in the present appeal.

We have given ample opportunity to the learned Counsel of both the parties to advance their contentions. On hearing them we are of the considered view that this appeal has no merit and deserves to be dismissed.

Learned Counsel for the appellant submitted that being a coparcener he has a share in the inherited property and this right could not be destroyed by his father respondent No. 3 even before his birth. He also submitted that it is an undisputed fact that the property was ancestral and came into the Branch of his grand-father late Shikhar Chand Jain in family arrangement/partition and, thereafter, same was not partitioned in between the respondent No. 1 and other respondents or among coparcener of the family and if any document regarding relinquishment was signed by respondent No. 3 and other respondents in favour of respondent No. 1 was not valid and in other words was ab initio null and void. He further submitted that relinquishment deed was executed by respondent Nos. 2 to 5 in favour of their mother respondent No. 1 on 30-3-1972, till then appellant was not born, therefore, the said document of relinquishment is not binding against him and as a coparcener he has a right in the property and could not be deprived of it even on the ground of his birth subsequent to said document. He further submitted that according to Hindu Law a coparcener acquired right by birth and before his birth any documentation against his right had taken place then same could be challenged by him after his birth and on attaining majority and such dispute could have been decided only after recording of evidence whether the said document was null and void. He also submitted that before filing of the written statement and framing the issues or in any case without recording the evidence on merit the trial Court had no jurisdiction to dismiss the suit under Order 7, Rule 11 of C.P.C. at the initial stage and according to his submission in the peculiar facts and circumstances of the case evidence was required and in the lack of it case was decided then the impugned order deserves to be set aside and case be remitted back to the trial Court for adjudication on merits after recording the evidence.

In support of his contention he has placed reliance on two decisions of this Court (1) Shiv Ratan Kanhaiyalal 1991 JLJ 257 and (ii) Kalawati (Mst.) Dhaniya Bai 1996 (2) MPWN 23. According to his submission in both the cases it has been laid that where case requires tendering of evidence the suit cannot be dismissed under Order 7, Rule 11 of C.P.C. at the initial stage.

In response to aforesaid contention the learned Counsel for the respondents vehemently argued that although the property was belonging to his forefathers but the share of the respondent No. 3'' being a coparcener of the family and Karta of his Branch relinquished by said relinquishment deed on 30-3-1972 much prior to birth of the plaintiff and whatever transaction took place in between respondents that is binding on the appellant being a son of respondent No. 3. In support of his contention he referred some pleadings of the plaint and submitted that it is not in dispute that the appellant was born on 13-10-1977 and the deed of relinquishment was executed long before his birth i.e. on 30-3-1972 and whatever transaction had already taken place and property was devolved or vested in the name of respondent No. 1 only and said transaction was never challenged by respondent No. 3, then it was binding even against appellant by virtue of principles of estoppel as enumerated u/s 115 of, Evidence Act. He further submitted that execution of relinquishment deed was not admitted by the appellant but respondent No. 3 has so stated in his written statement and it is apparent that the said deed was never cancelled by either of the parties and also otherwise such document was never challenged by respondent No. 3 till today.

He further submitted that according to provisions of Hindu Undivided (Joint) Family in the lifetime of Karta son has no authority to file the suit or proceedings against his grand-father or grand-mother and lastly he submitted that the trial Court has considered all possible aspects by passing an elaborate order regarding dismissal of suit which does not require any. interference in this appeal. He also placed reliance on the decision rendered in the cse of AIR 1948 1 (Nagpur) in which it has been held as follows:

64. The view taken by the Madars High Court in Krishnaswami Thevan and Others Vs. Pulukaruppa Thevan minor by his Mother and Gaurdian Krishnammal and Others, : Sri Ranga Thathachariar, late a minor by next friend Komalathammal, but now declared major and next friend discharged Vs. Srinivasa Thathachariar alias Srinivasa Raghavachariar, : Thavva Rangasayi and Others Vs. Thavva Nagarathnamma, and followed by the Bombay High Court in Ramsing Bhagiratha Navle Vs. Fakira Ramsing Navle, is not only the more logical view but it is also the better one from the point of view of convenience; it safeguards the interest of the minor avoids anomalies and makes for consistency. We approve these decisions and hold that even in a suit filed by a minor the severance of status takes place from the date of the suit and not from the dated of the decree. Accordingly the critical date was the 27th September, 1937 when Civil Suit No. 6-A of 1937 for partition was filed by Dineshchandra. As on that date Mandli Prasad was not in utero, he was not entitled to reopen the partition made in that suit. Ram Charan Lal was given a share and the plaintiff was entitled under law to claim a portion out of his share and not out of the share given to Devi Prasad.

He has also placed reliance on Chandra Kanta Ashok Kumar 2002 (3) MPLJ 576 in which it has been held as follows:

5. The Supreme Court has considered the impact of Hindu Succession Act, 1956 in its judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, and held as under:

19. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

In view of Preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son''s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as Karta of his own undivided family. The Gujarat High Court''s view noted above, if accepted would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded u/s 8 to inherit, the latter would be applying the old Hindu Law get a right by birth of the said property contrary to the scheme outlined in Section 8.

The Supreme Court in it Judgment in the case of Yudhishter Vs. Ashok Kumar, has again considered the question and has held as under:

10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, where one of us (Sabysachi Mukharji, J.) observed that under the Hindu Law the moment a son is born, he gets a share in father''s property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family with him. This Court observed that this position has been affected by Section 6 of the Hindu Succession, Act 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity.

In view of aforesaid dictum of the Apex Court he submitted that if the property was inherited by respondent No. 3, then although it was a property of undivided Hindu family but under the provision of Section 8 of Hindu Succession Act after demise of Shri Shikhar Chand Jain, whatever share of respondent No. 3 was in existence had became his self-acquired share and same was relinquished and thereafter being a son the appellant has no authority to challenge the same and it is undisputed that it was not. challenged by the respondent No. 3.

In view of aforesaid submission, we would proceed to examine the entire factual matrix of the case. It is apparent that initially this property was pruchased by late Lal Chand Jain on 8-1-1937 and the same was given by way of family arrangement or in partition to late Shikhar Chand Jain and after his demise the property was inherited by respondent Nos. 1 to 5 as his legal representatives and by virtue of Section 8 of Hindu Succession Act they had become co-owner of the property. In view of the aforesaid dictum of the Apex Court they are not coparcener but co-owner of the property and being a co-owner respondent No. 3 by executing relinquish deed had given his share to his mother, respondent No. 1 and after this transaction appellant was born on 13-10-1977. When the appellant was not in existence and any transaction took place regarding the property in between the interesse (sic) respondent then it could not be challenged at the subsequent stage. According to aforesaid discussion appellant was not having any cause of action or authority to file the suit against the respondent.

While dealing with. Order 7, Rule 11 of the C.P.C. the Apex Court has given following verdict in the matter of T. Arivandandam Vs. T.V. Satyapal and Another, :

5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the Court repeatedly Land unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif''s Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful � not formal � reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O. X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assasination of Mahatma Gandhi.

It is dangerous to be too good.

The trial Court in this case will remind itself of Section 35A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.

In view of aforesaid dictum of Apex Court the suit of the appellant/plaintiff was not tenable and, therefore, trial Court has not committed any error of jurisdiction or perversity in dismissing the suit of appellant under Order 7, Rule 11 of C.P.C. Thus, this appeal has no merit and the same is dismissed but in the facts and circumstances of the case there shall be no order as to cost.