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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE 2021
BEFORE
THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD
CIVIL REVISION PETITION NO. 253/2015
BETWEEN :
MANIPAL UNIVERSITY NO. 14, CENTURY TOWERS 6TH FLOOR, AIRPORT ROAD KODIHALLI, HAL II STAGE BENGALURU – 560 008.
REPRESENTED BY ITS POWER OF ATTORNEY HOLDER SRI P. SATISH PAI S/O LATE SRI. NARASIMHA PAI AGED ABOUT 67 YEARS RESIDING AT NO. 9 ASHWINI, 8TH MAIN ROAD RMV EXTENSION BENGALURU – 560 080. ... PETITIONER (BY SRI.ARAVIND KAMATH., SENIOR ADVOCATE FOR SRI. NIKIT BALA., ADVOCATE)
AND:
SRI RAMANJINAPPA H S/O LATE HONNURAPPA @ KRISHNAPPA AGED ABOUT 59 YEARS RESIDING AT KONGANAGHATTA VILLAGE KASABA HOBLI
2 DEVANAHALLI TALUK BANGALORE RURAL DISTRICT BENGALURU – 560 110.
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER M.SHIVAKUMAR S/O LATE M.S.MAHADEVAIH, AGED ABOUT 38 YRS, R/AT 109, H.V.R. LAYOUT, 4TH MAIN, MAGADI MAIN ROAD, BENGALURU – 560 079.
MR JEROME D SILVA S/O LATE THOMAS D SILVA AGED ABOUT 45 YEARS RESIDING AT NO. 91/1 1ST CROSS, 3RD MAIN VYALIKAVAL, BENGALURU – 560 003.
SMT DEENAMATHI NEMICHAND SALVA W/O LATE NEMICHAND SALVA AGED ABOUT 45 YEARS NO. 545, 3RD MAIN 6TH BLOCK, KORAMANGALA BENGALURU – 560 034.
SRI NAGARAJU. M S/O MUNISWAMAPPA AGED ABOUT 55 YEARS RESIDING AT AMS LAYOUT VIDYARANAPURA BENGALURU – 560 097.
SRI K. N. YELLAPPA S/O K. T. NARAYANAPPA AGED ABOUT 56 YEARS RESIDING AT MASJID ROAD K R PURAM, BENGALURU – 560 036.
3 6. SRI H. YESHWANTH SHENOY S/O LATE H. V. SHENOY AGED ABOUT 41 YEARS RESIDING AT NO. 35 "CHETANA" ASHWINI LAYOUT 3RD MAIN ROAD, EJIPURA KORAMANAGALA BENGALURU – 560 047.
RESPONDNET NO. 5 & 6 REPRESENTED BY GPA HOLDER, SRI. P.SATHISH PAI, S/O LATE P.NARASIMHA PAI, AGED ABOUT 52 YEARS, NO.1011, GROUND FLOOR,LAKSHMINARAYAN COMPLEX, PALACE ROAD, BENGALURU.
SRI D. P. JAYARAMAIAH S/O LATE S. PUTTANNA AGED ABOUT 64 YEARS NO.19, 5TH MAIN SIDDIVINAYAKA LAYOUT VIRUPAKSHAPURA VIDYARANYAPURA POST BENGALURU – 560 097.
SRI N. SRINATH S/O LATE D. P. NAGARAJ AGED ABOUT 30 YEARS RESIDING AT NO. 36 KRISHNAPPA BUILDING KODIGEHALLI SAHAKANAGARA POST BENGALURU – 560 092.
SMT DIVYA JYOTHI D/O LATE D. P. NAGARAJ AGED ABOUT 28 YEARS RESIDING AT NO. 74, 6TH CROSS C/O SAKUNTALAMMA BUILDING
4 MARUTHI NAGAR, BADRAPPA LAYOUT BENGALURU – 560 092. ... RESPONDENTS
(BY SRI. S. NAGARAJA., ADVOCATE FOR R1; NOTICE TO R2 TO R9 HELD SUFFICIENT)
THIS CRP IS FILED UNDER SEC. 115 OF CPC., AGAINST THE ORDER DATED 05.03.2015 PASSED ON IA NO.12 IN O.S.NO. 5079/2007 ON THE FILE OF THE 24TH ADL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE IA NO.12 FILED UNDER ORDER 7 RULE 11(a) AND 11(d) CPC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON 11.02.2021 AND FURTHER HEARD AND RESERVED ON 07.06.2021 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THIS COURT MADE THE FOLLOWING:
O R D E R
The ninth defendant in OS No. 5079/2007 on the file of the XXIV Additional City Civil and Sessions Judge, Bengaluru (CCH No. 6) (for short, ‘the Civil Court’) has filed this petition calling in question the order dated 05.03.2015. The suit in OS No.5079/2007 is filed by the first respondent for declaration that he is the absolute owner of the land measuring 6 acres and 11 guntas in Survey No.8 of Govindapura Village, Yelahanka Hobli, Bangalore North Taluk (for easy reference, ‘the subject property’) and for declaration
5 that the sale deeds dated 10.05.1986 and 06.09.1988 are non-est. The petitioner, who is subsequently impleaded as the ninth defendant along with other defendants, has filed application under Order VII rule 11(a) and (d) of the Code of Civil Procedure, 1908 (for short, ‘CPC’) for rejection of the plaint, and the Civil Court by the impugned order dated 05.03.2015 has rejected the application.
The parties to the proceedings, for reasons of convenience, are referred to as they are arrayed before the Civil Court. The controversy is between the plaintiff and the ninth defendant, and the other defendants though served have remained unrepresented. The plaint averments which are material for the purposes of the present petition are mentioned first as they give an effective backdrop for the question that arises for consideration.
A certain Sri. Doddanarasimaiah purchased the subject property under the sale deed dated 12.09.1936 and
6 on his demise, his two sons, Sri Muniswamappa and Sri Hutchappa, succeeded to the subject property. They partitioned the subject property and the other properties left behind by Sri Doddanarasimaiah under the registered partition deed dated 08.12.1946. In this partition, the subject property was allotted to Sri Hutchappa’s share. Sri Hutchappa died leaving behind his only son, Sri Ramanjinappa who was married to Smt. Honnamma. Sri Ramanjinappa died in the year 1958 leaving behind his wife and daughter, Smt. Honnamma and Smt. Ashwathamma.
The Defence requisitioned the subject property, however later released the same. Smt.Honnamma, who died intestate in the year 1991 was given possession of the subject property. Smt. Honnamma executed the sale deed dated 10.05.1986 [ one of the impugned sale deeds] in favour of the first defendant. The first defendant executed the other impugned sale deed
7 dated 06.09.1988 [the other impugned sale deed] through a power- of-attorney in favour of the second defendant.
The plaintiff is the husband of Smt. Ashwathamma, the daughter of Sri. Ramanjinappa and Smt. Honnamma. Smt. Ashwathamma has died on 18.01.1992 and she had no children. Smt. Ashwathamma has not challenged either the sale deed executed by Smt. Honnamma on 10.05.1986 or the subsequent sale deed executed by the first defendant on 06.09.1988. The second defendant has transferred the subject property in two halves in favour of the fourth and fifth defendants on 20.04.1995 and ultimately, the ninth defendant [the petitioner] has purchased the subject property under the sale deed dated 03.06.2009.
The plaintiff, who has filed the suit in the year 2007 for the relief of declaration of title and also that the sale deeds dated 10.5.1986 and 06.09.1988 are non-est, has not impugned either the sale deeds dated 20.04.1995 or the sale
8 deed dated 03.06.2009. Initially, the suit was filed only against the first and second defendants, but on 13.01.2010 the third to fifth defendants are impleaded, and on 25.07.2013 the sixth to ninth defendants are impleaded.
The plaintiff’s case is that after the demise of his wife, Smt. Ashwathamma, he has continued in possession of the subject property as the absolute owner. Smt. Honnamma [his mother-in-law] has executed the sale deed dated 10.05.1986 in favour of the first defendant without his wife’s consent. Neither the sale deed dated 10.05.1986 nor the subsequent sale deed dated 06.09.1988 are valid. The plaintiff was not aware of these transactions until the month of October 2006 when he accidentally chanced upon a copy of the sale deed dated 10.05.1986, and on enquiry, he came to know about the subsequent sale deed. When he approached the second defendant for cancellation of the sale deeds, she stated she would take possession of the subject property as she was the owner. As regards the cause of action for the
9 suit, the plaintiff asserts that cause of action arose during the 1st week of October 2006 when the plaintiff requested the second defendant to cancel the sale deeds, and later when the second defendant insisted upon the plaintiff to deliver possession of the subject property.
The ninth defendant [the petitioner] has filed written statement contesting the suit denying the plaint averments which are in controversy and taking up specific defences such as the suit being barred by limitation and payment of improper court fee. The ninth defendant has also denied the relationship between the plaintiff and Smt.Ashwathamma. Thereafter, the ninth defendant has filed the present application [IA No. 12] under Order VII Rule 11(a) and (d) of CPC asserting that: • the subject property, even according to the plaint averments, belonged to Sri Hutchappa whose son, Sri Ramanjinappa, succeeded to the same on his demise. Sri Ramanjinappa died leaving behind his
10 wife and daughter, Smt. Honamma and Smt. Ashwathamma, to succeed to the subject property. Even assuming, that Smt. Honnamma has executed the sale deed dated 10.5.1986 without Smt. Ashwathamma’s consent, the plaintiff could not have challenged the same [or the later sale deeds] as Smt. Ashwathamma did not challenge the same during her lifetime;
• the plaintiff, who asserts ownership to the subject property claiming that Smt. Ashwathamma was married to him, will not be entitled in law to assert ownership of the subject property in view of the provisions of section 15(2) of the Hindu Succession Act, 1956 [for short, ‘the HS Act’] when it is undisputed that Smt. Ashwathamma has died intestate without any children. As such, the plaint does not disclose cause of action;
11 • the plaintiff has filed the suit in the year 2007 after a lapse of more than 15 years from the date of the demise of Smt. Ashwathamma and 20 years after the execution and registration of the first of the impugned sale deeds in the year 1986. Smt. Honnamma, who could have challenged the sale deed dated 10.05.1986 if indeed the sale was vitiated, did not challenge the sale deed until her demise in the year 1991 and neither did Smt. Ashwathamma until her demise in 1992. The plaintiff’s suit filed in the year 2007 for declaration of title impugning these sale deeds is barred by limitation under the provisions of the Limitation Act, 1963 [for short, ‘the Limitation Act’]. .
The plaintiff has resisted the application [IA. No. 12] denying the ninth defendant’s assertions contending that the grounds on which the ninth defendant seeks rejection of the plaint would be in the realm of disputed questions of facts
12 which will have to be decided upon after a full fledged trial. The plaintiff is in possession and occupation of the subject property and as such, the cause of action as pleaded in the plaint would avail to his benefit. The grounds urged do not make out a case for rejection of the plaint either under Order VII Rule 11(a) or Rule 11(d) of CPC.
The Civil Court has rejected the ninth defendant’s application [IA No. 12] observing that cause of action for suit is a bundle of facts which will have to be established by the plaintiff in a trial and that the question of limitation is a mixed question of fact and law which can only be decided after a full-fledged trial. The Civil Court has rejected the ninth defendant’s reliance on the provisions of the HS Act for rejection of the plaint opining that whether Smt. Honnamma [the mother-in-law] had a limited right in the subject property that is enlarged as envisaged under section 14(2) of the HS Act is also a matter of trial and the plaintiff cannot be non- suited on such ground without a trial.
Sri Arvind Kamath, the learned senior counsel who appears for the ninth defendant, submits that the Civil Court has not considered the ninth defendant’s case based on the provisions of Section 15 of the HS Act. He emphasises that even if Smt. Ashwathamma [under whom the plaintiff asserts claim in the subject property] could assert interest in the subject property, it would only be as a legal heir of her father, Sri. Ramanjinappa. Hence the provisions of Section 15(2) of the HS Act apply and the subject property on her intestate demise, devolve only on her father’s legal heirs. The plaintiff, who could be a legal heir of Smt. Ashwathamma as her husband, cannot claim any right in the subject property.
Sri Arvind Kamath submits every property owned by a Hindu woman is bunched in one group under section 15(1) of the HS Act with the right to succession as mentioned therein subject to provisions of section 16 of the HS Act. However, an exception to this rule in Section 15(1) is provided
14 under section 15(2) of the HS Act as regards the properties inherited by a Hindu woman from her parents and husband/ father-in-law. The properties inherited by a Hindu woman from her parents, on her intestate demise without leaving behind any children (or persons claiming under such children) devolve on the legal heirs of the father. Similarly, the properties inherited by a Hindu woman from her husband or father in law, on her intestate demise without leaving behind any children (or persons claiming under such children), would devolve on the legal heirs of the husband. In support of this reading of the provisions of section 15 of the HS Act, he relies upon the decision of the Hon’ble Supreme Court in Bhagat Ram versus Teja Singh1.
Sri Arvind Kamath relying upon this proposition elaborates that even according to the plaint, Sri Ramanjinappa [Smt. Ashwathamma’s father] inherited the subject property from his father, Sri. Hutchappa. On the
1 (2002) 1 SCC 210
15 demise of Sri. Ramanjinappa, Smt. Ashwathamma inherited the subject property along with her mother, Smt. Honnamma. Smt. Ashwathamma died intestate in the year 1992 without any children. Thus the conditions necessary for the operation of the exception, as contained in Section 15(2) of the HS Act, to the general rule under section 15(1) of the HS Act are satisfied by the plaint averments. Therefore, the plaintiff, who asserts that he has succeeded to the subject property as Smt. Ashwathamma’s husband, cannot assert any manner of right in the subject property; if any person could claim any right to the subject property after the demise of Smt. Ashwathamma, it has to be her father’s heirs. But none of such heir has filed any suit asserting such right. As such, there is no cause of action, and hence, the plaint must be rejected under Order VII Rule 11(a) of CPC.
Sri Arvind Kamath next argues that the plaint, which is for declaration of title to the subject property and that the impugned sale deeds are non-est, is obviously barred
16 by limitation. The limitation for filing a suit for declaration is provided under Part III of the schedule to the Limitation Act, 1963 and the only provision that would be applicable in a case of this nature would be Article 58 which provides a limitation of period of 3 years from the time when the right to sue first accrues. In the present case it is indisputable that the cause of action for declaration, even if any, first arose during the lifetimes of Smt. Honnamma and Smt. Ashwathamma neither of whom challenged the sale deeds seeking declaration of title and hence, the suit filed in the year 2007 is obviously barred by limitation. In the present case with the undisputed facts as mentioned above, the question whether the suit is barred by limitation in view of the provisions of Article 58 of the Limitation Act, 1963 would only be a question of law. The settled law is that when a plaint is ex-facie barred by limitation, the plaint shall be rejected under Order VII Rule 11 of CPC. In this regard Sri Arvind Kamath relies upon the decision of the Honourable Supreme Court in Dahiben v.
17 Arvindbhai K Bhanusali2, and he also argues that an attempt at clever drafting can never save a plaint which is barred by limitation, and such plaint must be nipped at the initial stage.
Sri. S Nagaraj, learned counsel for the plaintiff, submits that the provisions of section 15(2) of the HS Act apply only in the case of inheritance by a Hindu woman and not when the property devolves on her by succession. Smt. Ashwathamma has succeeded to the subject property by succession from her father, Sri Ramanjinappa, and not by inheritance. Therefore, the provisions of section 15(2) of the HS Act are not applicable to the case on hand. The learned counsel relies upon the decision of a division bench of this Court in Hajee Abdulla Sait v. Commissioner of Income Tax3 to contend that etymologically the expression ‘succession’ encompasses every kind of passing of property
2 (2020) 7 SCC 366 3 (1989) 177 ITR 71
18 while the expression ‘inheritance’, as used in Section 15(2) of the HS Act, refers to rules of devolvement of co-parcenery right by birth by survivorship. The learned counsel also relies upon the decision of the High Court of Andhra Pradesh in Goraka Anjaneyulu v. Gunti Tatayya Naidu and other4 to bolster his submission that the provisions of section 15(2) of the HS Act applies only in the case of ‘inheritance’ and not in the case of ‘succession’. He submits that therefore the ninth defendant, relying upon the provisions of section 15 of the HS Act, cannot contend that plaint does not disclose cause of action or that the plaintiff cannot have a cause of action.
Sri S Nagaraj submits that the plaintiff is unequivocal and categorical in the plaint that he has continued in undisturbed and continuous possession of the subject property as the absolute owner after the demise of his wife, Smt. Ashwathamma, and that the cause of action for the suit arose in the 1st week of October 2006 when the second
4 AIR 2011 AP 120
19 defendant demanded delivery of possession of the subject property asserting rights under the impugned sale deeds. The cause of action arises only when there is an infringement or a threat of infringement of a right as held by the Hon’ble Supreme Court in M/s Zee Telefilms Ltd. v. Suresh Productions and others5, and in the present case, a reading of the plaint, which should be the only material for consideration for rejection of the plaint under Order VII Rule 11 of CPC, discloses threat to the plaintiff’s right just prior to the suit. Therefore the cause of action for the suit is within the limitation period contemplated under Article 58 of the Limitation Act, 1963.
Sri S Nagaraj contends that the question of limitation should be determined along with the other Issues as held by the Hon’ble Supreme Court in Shyam Madan Mohan Ruia and others v. M/s Holdings Limited6 because
5 (2020) 5 SCC 353 6 (2020) 5 SCC 252
20 question of limitation is always a mixed question of fact and law. He submits that the Hon’ble Supreme Court in Surjit Kaur Gill and another versus Adarsh Kaur Gill and another7 has declared that the question of limitation would always be a mixed question of fact and law and hence, the rejection of plaint on the ground of limitation without a trial would be impermissible. He further submits that the powers of the courts under Order VII Rule 11 of CPC are drastic and therefore, there must be strict adherence with the conditions enumerated therein. In the facts and circumstances of the case, there should not be any interference with the Civil Court’s rejection of the application (IA No. 12) under Order VII Rule 11 of CPC.
The Civil Court, without examining the question of limitation in the light of the rival submissions, has generally opined that the question of limitation would be a mixed question of fact and law and therefore the plaint cannot be
7 AIR 2014 SC 1476
21 rejected on such ground. And insofar as the ninth defendant’s case that the plaintiff cannot have a cause of action in the light of the provisions of section 15 of the HS Act because he claims ownership to the subject property as the husband of Smt. Ashwathamma, the Civil Court has not even considered the same. In fact, Sri. S Nagaraj, the learned counsel for the plaintiff, does not contest that the ninth defendant has specifically urged this ground in the affidavit accompanying the application [IA No. 12] and the Civil Court has not considered the same, and he only contends that the provisions of section 15(2) of the HS Act will not apply to the present case because the plaintiff has acquired rights to the subject property by succession and not by inheritance.
In the light of the rival submissions the question for this Court’s consideration is:
“Whether, in the facts and circumstances of the case, this Court can reasonably conclude that the plaint ex-facie does not disclose cause of action or that the
22 plaint is ex-facie barred by law and therefore, the plaint in OS No. 5079/2007 on the file of the Civil Court for declaration must be rejected under Order VII Rule 11 of CPC”.
This question is examined in the light of the plaint averments and the provisions of Section 15 of the HS Act as well as the recent decisions of the Hon’ble Supreme Court on limitation qua the provisions of Order VII Rule 11(d) of CPC and Section 15 of the HS Act.
The plaint averments are that Sri Hutchappa, who acquired the subject property in a partition, died leaving behind his only son, Sri. Ramanjinappa, and on the demise of this Ramanjinappa, his wife and daughter, Smt. Honnamma and Smt. Ashwathamma, succeed to the subject property. Both the wife and the daughter have died intestate in the years 1991 and 1992 respectively. Though Smt. Honnamma executed the sale deed dated 10.05.1986 in favour of the first defendant, which was followed by the subsequent sale deed in
23 favour of the second defendant, neither Smt. Honnamma nor Smt. Ashwathamma challenged these sale deeds. The plaintiff asserts that Smt. Honnamma executed this sale deed without her daughter’s consent because she was under the influence of certain third persons. The plaintiff, who asserts rights in the subject property as the husband of Smt. Ashwathamma, has filed the present suit for declaration in the year 2007 without challenging the sale deeds executed by the second defendant in the interregnum in favour of the fourth and fifth defendants. It is obvious that there is a time lag of over two decades in impugning the sale deeds executed by Smt. Honnamma in favour of the first defendant who has later transferred the subject property in favour of the second defendant with multiple transactions thereafter. It is these circumstances that this Court must examine to conclude whether the plaint ought to be rejected under Order VII Rule 11(a) and/ or Rule 11 (d) of CPC.
24 21. The succession to the properties of a Hindu woman dying intestate is governed by the provisions of section 158 read with the provisions of section 16 of the HS Act. The ninth defendant contends ex-facie the plaintiff cannot assert any right in the subject property because the provisions of section 15(2) of the HS Act would apply, and the plaintiff asserts that the provisions of section 15(2) would not apply because the plaintiff claims title to the subject property under Smt. Ashwathamma who succeeded thereto from her parents and did not inherit the same from them.
8 15 General rules of succession in the case of female Hindus, -(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,- (a) firstly, upon the sons and daughters (including the children of any ;pre-deceased son or daughter] and the husband ; (b) secondly, upon the heirs of the husband ; (c) thirdly, upon the mother and father ; (d) fourthly, upon the heirs of the father ; and (e) lastliy, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein but upon the heirs of the father, and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
25 22. The provisions of section 15 of the HS Act have come up for consideration before the Hon’ble Supreme Court in Bhagat Ram v. Teja Singh9, and the interplay between the provisions in sub-section (1) and sub-section (2) of section 15 of HS Act, 1956 has been elucidated. The Honourable Supreme Court has declared as follows:
“On perusal of the two sub-sections we find that their spheres are very clearly marked put. So far sub-section (1), it covers the properties of a female Hindu dying intestate. Sub-section (2) starts with the words `Notwithstanding anything contained in sub-section (1)'. In other words, what falls within the sphere of sub- section (2), sub-section (1) will not apply. We find that Section 15(2)(a) uses the words `any property inherited by a female Hindu from her father or mother', Thus property inherited by a female Hindu from her father and mother is carved-out from a female Hindu dying intestate. In other words any property of female Hindu, if inherited by her from her father or mother would not fall under sub-section (1) of Section 15. Thus, property of a female Hindu can be classified under two heads : Every property of a female Hindu dying intestate is a
9 (1999) 4 SCC 86
26 general class by itself covering all the properties but sub-section (2) excludes out of the aforesaid properties the property inherited by her from her father or mother.”
A useful reference in this regard could be also made to the reiteration of this proposition by the Hon’ble Supreme Court in S.R. Srinivasa & Ors v. S. Padmavathamma10 referring to its earlier decision in V. Dandapani Chettiar v. Balasubramanian Chettiar11. It has been reiterated by the Hon’ble Supreme Court as follows:
"9. The above section propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate after the commencement of the Act. This section groups the heirs of a female intestate into five categories described as Entries (a) to (e) and specified in sub-section (1). Two exceptions, both of the same nature are engrafted by sub-section (2) on the otherwise uniform order of succession prescribed by sub-section (1). The two exceptions are that if the female dies without leaving any issue, then in respect of the property inherited by her from her father or mother, that
10 (2010) 5 SCC 274 11 2003) 6 SCC 633
27 property will devolve not according to the order laid down in the five Entries (a) to (e), but upon the heirs of the father; and (2) in respect of the property inherited by her from her husband or father-in-law, it will devolve not according to the order laid down in the five Entries (a) to (e) of sub-section (1) but upon the heirs of the husband. The two exceptions mentioned above are confined to the property "inherited" from the father, mother, husband and father-in-law of the female Hindu and do not affect the property acquired by her by gift or by device under a Will of any of them. The present Section 15 has to be read in conjunction with Section 16 which evolves a new and uniform order of succession to her property and regulates the manner of its distribution. In other words, the order of succession in case of property inherited by her from her father or mother, its operation in confined to the case of dying without leaving a son, a daughter or children of any predeceased son or daughter." 10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a predeceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2)(a). If it is inherited by
28 her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section 15(2)(b). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or daughter including the children of any predeceased son or daughter, then the property would devolve upon the heirs of her father. Result would be -- if the property is inherited by a female from her father or her mother, neither her husband nor his heirs would get such property, but it would revert back to the heirs of her father."
The Division Bench of this Court in Hajee Abdulla Sait v. Commissioner of Income Tax supra [a decision relied upon by Sri S Nagaraj] was considering the question whether the expression ‘succession and inheritance” in Section 2 of the Cutchi Memons Act, 194312 includes the concepts of Hindu law of right by birth and survivorship with all the incidents of co-parcenery property or such expression
12 The Cutchi Memons Act, 1943 provides that all cutchi memons in matters of succession and inheritance, who until then were governed by the rules of Hindu law, shall be governed by Mohammedan law
29 is limited to application of Hindu law in the case of intestate succession to self acquired properties. The Division Bench, in the context of the provisions of Cutchi Memons Act, 1943, has concluded that the expression ‘succession and inheritance’ used in such enactment must be understood to include the rules as to the joint family properties, its distribution according to the rule of survivorship and the right of a son by birth so that the applicability of the aforesaid principles to cutchi memons stands displaced as intended by section 2 of the Act of 1943. The Division Bench has referred to earlier decisions where these expressions have been discussed, but not in the context of Section 15 of the HS Act.
The references to the expressions ‘succession’ and ‘inheritance’ by the Division Bench while examining the connotation of the expressions ‘succession and inheritance’ in the context of section 2 of the Act of 1943, or the reference to these expressions in the context of examining the competence of the Madras Legislative Assembly to enact Madras
30 Aliyasanthana Act 9 of 1949 in the light of the expression ‘Will, Intestacy and Succession’ in Entry 7 of Part I of Concurrent Legislative List of Government of India Act 1935 [subject matter of the decision in Santhamma v. Neelamma – AIR 1956 Madras 642, which is referred to by the Division Bench] cannot be used to avoid the definite and uniform scheme of succession13 to the property of a Hindu Woman who dies intestate after the commencement of the HS Act. The etymological reference to the expressions ‘Succession’ and ‘Inheritance” by the Division Bench and the opinion that “enactments of the Parliament and of the Indian legislature have used the words 'inheritance' and 'succession' in juxtaposition, justifying the inference that succession is another category from or a wider category than inheritance” cannot overwhelm the definite and uniform scheme under section 15 of the HS Act.
13 As declared by the Hon’ble Supreme Court in Bhagat Ram vs. Teja Singh and the later decision referred to supra.
31 26. The definite and uniform scheme of succession under section 15 of the HS Act is that the heirs of a Hindu woman who dies intestate are grouped into five categories as described in entries (a) to (b) of section 15(1) of the HS Act with two exceptions if such woman dies intestate without leaving behind any issue. In such cases for the two exceptions to operate, the Hindu woman should have inherited the concerned property either from her parents or her husband/ father-in-law; if she has inherited from her parents, it devolves on to the legal heirs of the father and if she has inherited from her husband/father-in-law, the property devolves onto the legal heirs of the husband. These exceptions are [as declared by the Hon’ble Supreme Court in Dandapani Chettiar v. Balasubramanian Chettiar supra] a very limited recognition of the old Hindu law which restricted a woman's estate in inherited property for its devolution as from the last full owner.
32 27. The decision of the Andhra Pradesh High Court in Goraka Anjaneyulu v. Gunti Tatayya Naidu and others will not help the plaintiff’s cause because in the case on hand before the Andhra Pradesh High Court the properties were bequeathed in favour of the plaintiff’s wife by her father-in- law and it is in this context the Hon’ble Judge has observed that “section 15(2) gets attracted only in case of inheritance and not that of succession”. However, the plaintiff does not say that his wife, Smt. Ashwathamma, has acquired rights to the subject property from her parents either under a Will or Gift or any other mode of inter vivos transfer. In fact, the plaintiff’s case is that on the demise of Sri Ramanjinappa the subject property devolved onto his wife Smt. Honamma [with a limited interest] and to his daughter, Smt. Ashwathamma.
Therefore, it would be indisputable that Smt. Ashwathamma inherited14 the subject property as a legal heir of her father, Sri. Ramanjinappa. Thus, even from the plaint
14 Inheritance is generally understood as ‘succession by descent’ or an estate which has descended to a heir and cast upon by the operation of law
33 averments it is obvious that Smt. Ashwathamma could only have claimed the subject property by inheritance from her father; in which event, the subject property would revert to the legal heirs of her father. If anybody could have challenged the sale deeds dated 10.05.1986 or the subsequent sale deeds, it could have to be the legal heirs of her father. The plaintiff, who claims right to the subject property as her husband, cannot assert any interest in the subject property, and as such, it is obvious that on a meaningful reading of the plaint, it does not disclose cause of action.
It is settled law that the plaint can be rejected under Order VII Rule 11 of CPC only if conditions enumerated in the provisions thereof are fulfilled. For the purposes of rejection of plaint under Order VII Rule 11 of CPC, the Courts must only consider the averments in the plaint, and the averments in the written statement are wholly immaterial. A plaint can be rejected at any stage of the proceedings, and when a plaint is rejected, the Courts exercise drastic power as
34 the proceedings are truncated at the threshold without a trial. The averments in the plaint must be read as a whole and must be taken on their face value; only if the plaint averments on such reading, does not disclose cause of action or is barred by law, the power under Order VII Rule 11(a) or (d) of CPC can be exercised. An ingenious and a clever drafting creating an illusion of cause of action cannot save a plaint if the conditions contemplated under Order VII Rule 11 of CPC are fulfilled, and the plaint must be rejected to nip a bogus litigation at the earliest stage15.
This Court, for the reasons already detailed, has opined that the plaint does not disclose cause of action in the plaintiff for declaration of title to the subject properties in view of the provisions of Section 15(2) of the HS Act. The other question is whether the plaint should be rejected under
15 Shakti Bhjog Food Industries Ltd. v. Central Bank of India 2020 SCC Online SC 482
35 Order VII Rule 11(d) of CPC as being ex-facie barred by limitation under the provisions of the Limitation Act.
The plaintiff’s case is that neither he nor his wife, Smt. Ashwathamma, were aware of the sale deeds dated 10.05.1986 or 06.09.1988 until he chanced upon a copy of the sale deeds in the year, that is more than a decade after the demise of his wife. He, who had continued in possession of the subject land, called upon the second defendant to cancel the sale deeds, and she requited by demanding possession. Therefore, the cause of action for the suit arose in the first week of the month of October, 2006. The plaintiff relies upon the assertion of being in possession of the subject land and laying his hand on the copies of the sale deeds dated 10.05.1986 and 06.09.1988 in the month of October, 2006 to assert cause of action. If these assertions are just a veneer and clever drafting and otherwise it is obvious that the suit is barred by limitation, the plaint can be rejected under Order VII Rule 11(d) of CPC.
36 32. The plaintiff, who denies knowledge of the impugned sale deeds which are dated 10.05.1986 and 06.09.1988, has not challenged the subsequent sale deeds executed [and registered] on 20.04.1995 in favour of the fourth and fifth defendants. His case is that after the aforementioned sale deeds dated 10.05.1986 and 06.09.1988, the revenue entries in RTC for the subject property are updated in the name of the purchaser but he has continued in possession. The plaint averments in this regard read as under: “The plaintiff further submits that subsequent to the said sale transaction with Smt. Honnamma and the first defendant, the defendant No. 1 has further sold the schedule property through his power-of-attorney holder, Sri S L Nayak in favour of the 2nd defendant vide the Regd. Doc. No. 6794/88-89 dated 6.9.1988 and the revenue entries in respect of the suit schedule property was transferred in the name of the second defendant, but till the day, the purchaser i.e., has not taken possession of the suit schedule property, whereas even today the plaintiff is in possession of the suit
37 schedule property though the RTC entries are in the name of the second defendant.
The suit is for declaration of title and declaration that the impugned sale deeds are non-est. The period of limitation for the suit would be the period prescribed under Article 58 Part III of the schedule to the Limitation Act. There is no dispute that the applicable provisions would be Article 58 of the Limitation Act. While it is argued on behalf of the ninth defendant that the cause of action for the suit, even if any, first accrued on the execution of the sale deed dated 10.05.1986 as contemplated under Article 58, it is argued on behalf of the plaintiff that the question of limitation is a mixed question of fact and law and in this case the cause of action first arose in the first week of the month of October 2006. The learned counsel for the plaintiff, without disputing the applicability of Article 58, emphasises that the question of limitation is always an amalgam of questions of fact and law,
38 and therefore, the question of limitation cannot be examined at the threshold.
However, the Hon’ble Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhansuali supra has held as follows in paragraph 23.3
"The underlying objective Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule (d) , the court would not permit the plaintiff to unnecessarily protracted proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation so that further judicial time is not wasted."
Even in Shakti Bhog Food Industries Ltd. v. Central Bank of India supra it is observed that clause (d) makes, “it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected.” As such, the question of limitation for the purposes of Order VII Rule 11(d) CPC cannot be refused to be considered in all cases on the
39 ground that it would always be a mixed question of fact and law.
In the present case, it is not disputed that the provisions of Article 58 of Part III of the Schedule to the Limitation Act would apply. The cause of action for the challenge to the sale deed dated 10.05.1986 first arose with the execution and registration of such sale deed in the year 1986 and definitely in the year 1988 insofar as the other impugned sale deed dated 06.09.1988. The plaintiff’s contention that the cause of action first arose in the first week of the month of October, 2006 because he was in possession of the subject property without the knowledge of the sale deeds which were executed without his wife’s consent. This is despite stating that the revenue entry stood transferred in favour of the second defendant on the execution of the sale deed dated 06.09.1988. In the considered opinion of this Court, there is clever drafting to create an illusion of a cause of action and gloss over the fact that the
40 suit was not commenced over a period of two decades from the date of the sale deed, i.e., when the cause of action first arose. This is obvious even from the reading of the plaint averments. As such, the plaint is also liable to be rejected under Order VII Rule 11(d) of CPC.
For the foregoing, the impugned order dated 05.03.2015 in OS No. 5079/2007 on the file of the XXIV Additional City Civil and Sessions Judge, Bengaluru (CCH No. 6) is set aside and the plaint in this suit in OS No. 5079/2007 is rejected under Order VII Rule 11(a) and (d) of CPC.
SD/-
JUDGE nv