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Or.7, Rule 11 C.P.C not maintainable in Partition suit – SPECIAL LEAVE PETITION (CIVIL) NO.11136 OF 2013 John Kennedy & Another … Petitioners Versus Ranjana & Others … Respondents

Non-reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.11136 OF 2013

John Kennedy & Another … Petitioners

Versus

Ranjana & Others … Respondents

JUDGMENT

Chelameswar, J.

1. The instant special leave petition is filed by two unsuccessful
petitioners before the High Court of Madras in CRP (PD) No.3342 of 2012
aggrieved by a final order dated 15.11.2012 passed therein.

2. The petitioners herein are defendant nos.2 and 3 respectively in
Original Suit No.300 of 2011 on the file of the Court of District Judge,
Coimbatore. The said suit was filed by the first respondent herein. She
is the daughter of 2nd respondent herein. The suit was filed with the
prayer as follows:

“a) for partitioning of the properties more fully described in the
schedule hereunder and allot share to the plaintiff.

b) directing the defendants to pay plaintiff the cost;

c) granting to the plaintiff such other and further reliefs as this
Hon’ble Court may deem fit and proper in the circumstances of the case and
render justice.”

Such a prayer is based upon the pleading that the suit scheduled property
originally belonged to one Shri S. Somanathan, the grandfather of the
plaintiff who according to the plaint died intestate on 16.08.1981. The
relevant portion of the plaint reads as follows:

“The suit properties more fully described hereunder in the schedule belongs
to Late Somanathan vide document bearing Registration No.1072/1972 dated
20.03.1972. He died intestate on 16.08.1981. On his death, the properties
devolve upon his legal heirs including the 1st defendant. Subsequently,
the properties were partitioned to metes and bounds between the legal heirs
vide Partition Deed bearing Registration No.2435/1982, dated 05.06.1982 in
the Office of the District Registrar, Coimbatore. The 1st defendant being
one of the son of Late Somanathan the Schedule hereunder.”

3. According to the plaintiff, the 1st petitioner herein is the
“erstwhile power of attorney” of the father of the plaintiff. The other
defendants no.3 to 8 are the “alleged purchasers of a part of the suit
property from the 1st defendant through the 2nd defendant”. It is alleged
in the plaint that the plaintiff and her father constituted a Hindu
Undivided Family and the suit property is ancestral property in the hands
of the 1st defendant. The relevant portion of the plaint reads as follows:

“The suit property is an ancestral property in the hands of the 1st
defendant. The 1st defendant being the Kartha of the Hindu Undivided Family
was looking after the same. He is having only the right to manage the
properties. The properties mentioned in the schedule were enjoyed by the
plaintiff and the 1st defendant jointly. The plaintiff and the 1st
defendant are the co-owners in the suit property. There is no partition
between the plaintiff and is not having any right to alienate the same
without the consent and concurrence of the plaintiff. The 1st defendant
and the plaintiff are having undivided share each in the suit property,
being the coparceners of the Hindu Undivided Family.”

4. In the background of the abovementioned pleading, the plaintiff made
a further allegation that –

“Upon enquiry, the plaintiff came to know that the sale of a part of the
suit property to the defendants 3 to 8 are collusive transactions without
any consideration. The price quoted in the sale deeds are imaginary and
very low. The market value of the property is much more than what is
mentioned as price in the sale deeds. The 3rd to 8th defendants are not
bonafide purchasers for good consideration. The alleged sale transactions
are fraudulent and designed to defeat the right of the plaintiff. The
alleged transactions were neither in good faith nor for valuable
consideration. All the above said sale deeds will not bind the plaintiff
in any manner. Hence the plaintiff is ignoring the same.”

5. Having made such an allegation, the plaintiff never gave any
description or any details of the sale transaction/s entered into between
the 1st petitioner and the other alleged purchasers of the part of the suit
scheduled property through the 2nd petitioner herein. More interestingly
no relief is sought in the suit either against the 1st petitioner herein or
the other defendants who are allegedly the vendees of some part of the suit
scheduled property.

6. In the background of such a plaint, the petitioners herein filed I.A.
No.1097 of 2011 praying that the plaint be rejected on the ground that the
suit is a vexatious suit. By an order dated 19.06.2002, the trial court
dismissed the said application.

7. Aggrieved by the same, the petitioners herein carried the matter by
way of a revision to the High Court unsuccessfully. Hence, this SLP.

8. It appears from the impugned judgment that the debate before the High
Court was – whether the suit scheduled property is the self acquired
property of the father of the plaintiff or the property ‘belong to the
coparcenery’ between the plaintiff and her father.

9. The High Court on the basis of such a vague pleading in the plaint,
even without a written statement chose to declare as follows:

“Therefore, the property in the hands of 1st defendant takes the character
of ancestral property and after the Tamil Nadu Amendment Act, 1989 to the
Hindu Succession Act, 1956, unmarried daughter also became coparceners and
they are entitled to claim a share in the ancestral property along with
son.”

10. Even before this Court, it was argued by the petitioners that the
suit scheduled property is to be treated as self acquired property of the
father of the plaintiff and not ancestral property and, therefore, the
plaint is required to be rejected.

11. We refrain from making any further comment as any comment at this
stage by this Court will have some impact on the rights and obligations of
some parties to the suit or the other.

12. We are of the opinion that the IA No.1097 of 2011 is wholly
misconceived. Whether the suit scheduled property is ancestral property
of the plaintiff’s father or self acquired property depends upon various
factors. The law in this regard is well settled. Whether the plaintiff is
entitled for a right of partition in the suit scheduled property by virtue
of the amendment carried to the Hindu Succession Act by the State of Tamil
Nadu in 1989, or subsequently by the Parliament, are matters to be decided
after the pleadings are completed and evidence adduced. In the
circumstances, though we are of the opinion that I.A. No.1097 of 2011 is
required to be dismissed, the finding recorded by the High Court that the
suit scheduled property is ancestral property of the father of the
plaintiff and, therefore, the plaintiff is entitled for a share is uncalled
for at this stage and we set aside the same leaving it open for the trial
court to examine these questions during the course of trial uninfluenced by
any observation made by the High Court in the impugned order. The Special
Leave Petition is disposed of accordingly. No order as to costs.
………………………………J.

(J. Chelameswar)

………………………………J.
(Pinaki
Chandra Ghose)
New Delhi.
November 12, 2014

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