IN THE COURT OF ADDITIONAL CIVIL JUDGE & JMFC

AT CHIKKANAYAKANAHALLI

Present: Smt.Aparna.R, B.Com, LLB

Addl. Civil Judge & JMFC,

Dated this 19th Day of March, 2024

O. S. No. 94/2015

PLAINTIFF : Saroojamma
W/o Surachar
Aged about 40 years,
R/o: Hosahalli Village,
Huliyar Hobli,
Chikkanaykanahalli Taluk,
Tumkur District.

- Vs -

DEFENDANTS : 1 Puttamma
W/o Late Hanumachar
Aged about 86 years,

2 Shanthachar
S/o Late Hanumachar
Aged about 60 years,

3 Surachar
S/o Late Hanumachar
Aged about 56 years,

Defendant No.1 to 3 are

R/o: Hosahalli Village,
 2 O.S. 94/2015-O

Huliyar Hobli,
Chikkanaykanahalli Taluk,
Tumkur District.

4. Jayamma
W/o Channachar
Aged about 64 years,
R/o: Srirampura Village,
Srirampura Hobli,
Hosadurga Taluk.

5. Ramachar
S/o Late Hanumachar
Aged about 58 years,
Hostel Warden,
M.S. Engineers boys collage,
Boovi palya, Sadarahalli gate,
Air port road, Bangaluru.

6. Gayithamma
W/o Rangachar
D/o Late Hanumachar
Aged about 58 years,
R/o: Someshwara Extention,
S.S.Puram, 1st Main road,
Tumkur, Tumkur District.

7. Kalamma
W/o Ramachar
D/o Hanumachar
Aged about 66 years,
R/o: Huliyar Town,
Huliyar Hobli,
Chikkanayakanahalli Taluk,
Tumkur District.

8. H.R.Gangamma
 3 O.S. 94/2015-O

W/o Lakshmana
@ Muddappanara Lakshmana
D/o Hanumachar
Aged about 58 years,
R/o: Hosahalli Village,
Huliyar Hobli,
Chikkanayakanahalli Taluk,
Tumkur District.
I.A.No.10

APPLICANT : Ramachar
- Vs -
OPPONENTS : Sarojamma

PREAMBLE

i Provision under which the Under Order VII Rule

application is filed 11(a) of CPC
ii Relief sought for Rejection of plaint
iii Date on which the application 27/06/2023
is filed
iv Number of the application IA No.10
v Date on which objections are 10/10/2023
filed by different opponents
vi Date on which orders were 19/03/2024
passed on the said application.

ORDERS ON I.A.No.10

The Defendant No.5 has filed the present application under

Order 7 Rule 11 (a) & (d) of CPC praying to reject the plaint for

lack of cause of action for the suit.

 4 O.S. 94/2015-O

1. In the affidavit annexed to this application, the Defendant

No.5 contends that one Hanumachar has 2 wives viz., 1 st Wife

Kempamma and 2nd Wife Puttamma, the Defendant No.1 herein.

That subsequent to the death of said Kempamma, the said

Hanumachar married the Defendant No.1. That the Defendant

No.7 is the daughter of said Hanumachar through his 1 st Wife

Kempamma. That the said Defendant No.7 Kalamma has 3

daughters and two sons viz., Suvarnamma, Nagamma,

Sarojamma (Plaintiff), Chandrashekar and Krishnamurthy. That

the Defendant No.2 to 6 are the children of the said Hanumachar

through the 2nd Wife Puttamma (Defendant No.1). That instant

suit is filed seeking ½ share in 1/7th share of Defendant No.7.

That the suit is not maintainable seeking share in the 7 th

Defendant’s share during her lifetime and hence, the suit is filed

on vexatious grounds without any cause of action, hence prays to

allow the application.

2. Per contra, the application is resisted by the plaintiff

contending that the application is filed without any valid grounds

 5 O.S. 94/2015-O

and has not produced any documents in support of the

application, by colluding with other defendants and hence prays

to dismiss the application.

3. Upon hearing both sides and perusal of the materials placed

on record, the short point that arises for the consideration of this

Court is whether the plaint is liable to be rejected for lack of

cause of action?

4. This Court answers the aforesaid point in the Affirmative

for the following:

REASONS

5. This is a suit for partition and separate possession filed by

the plaintiff seeking ½ share in 1/7th share of Defendant No.7.

Admittedly, while deciding application under Order 7 Rule 11 of

CPC, the Courts are to consider only the plaint averments

irrespective of the defence raised by the defendants. Accordingly,

it is necessary to cull out Para 3 to 5 of the plaint for better

understanding of the case.

 6 O.S. 94/2015-O

“3. The plaintiff is the granddaughter of

one Late Hanumachar and daughter of
Defendant No.7, the Defendant No.7 is the
daughter of 1st wife of Late Kempamma and
father of Late Hanumachar, the Defendant
No.1 is the 2nd wife of late Hanumachar, the
Defendant No.2 to 6 are the children of 1st
Defendant and Late Hanumachar, the 1st
Defendant is the Kartha of the family.

4. The Plaintiff and Defendant No.1 to 6

constitute Hindu Undivided joint family
members.

5. The properties morefully described in

the schedule here under written here in after
styled as suit schedule properties are the
ancestral and joint family properties of the
plaintiff and Defendant No.1 to 7. the
revenue documents of the suit schedule
properties stands in the name of Defendant
No.1, 2, 3 & 5. The plaintiff is having ½
share of her mother Defendant No.7’s 1/7th
share in the suit schedule properties by metes
and bounds.”
 7 O.S. 94/2015-O

6. On careful perusal of the aforesaid averments, it is clear

that the plaintiff claims ½ share in the 7 th Defendant’s 1/7th share.

Pertinently, the Defendant No.7 is the daughter of Late

Hanumachar and Late Kempamma and plaintiff is their

granddaughter. When such being the case, the plaintiff does not

become a joint family member in the family of said Late

Hanumachar and Late Kempamma and hence the suit schedule

properties do not become her ancestral and joint family

properties.

7. The Hon’ble Apex Court of India between Shyam Narayan

Prasad v. Krishna Prasad, reported in (2018) 7 SCC 646 at page

651 Para 12, defined “Ancestral Property” as ‘the property

inherited by a male Hindu from his father, father's father or

father's father's father is an ancestral property.” The essential

feature of ancestral property, according to Mitakshara Law, is that

the sons, grandsons, and great grandsons of the person who

inherit it, acquire an interest and the rights attached to such

property at the moment of their birth. The share which a

 8 O.S. 94/2015-O

coparcener obtains on partition of ancestral property is ancestral

property as regards his male issue. In the case on hand, the suit

properties as per the averments in the plaint belongs to the family

of Late Hanumachar and Late Kempamma, as such the properties

from plaintiff’s maternal grandfather does not become her

ancestral property.

8. In the present case, there is another rider, i.e., the existence

of Defendant No.7, who happens to be the mother of plaintiff and

daughter of Late Hanumachar. The plaintiff is claiming partition

in the properties of her maternal grandfather when her mother is

alive. To understand the devolution of properties under

Mitaskshara Law, it is necessary to understand the concept of

obstructed heritage or sapratibandha daya. The property, the right

to which accrues not by birth but on the death of the last owner

without leaving a male issue is called obstructed heritage. It is

called obstructed, because the accrual of right to it is obstructed

by the existence of owner. Thus, property which devolves on

parents, brothers, nephews, uncles, etc., upon the death of the last
 9 O.S. 94/2015-O

owner, is obstructed heritage. These relations do not take a vested

interest in the property by birth. Their right to it arises for the first

time on the death of the owner. Until then, they have a mere spes

successionis, or a bare chance of succession to the property,

contingent upon their surviving owner. Unobstructed heritage

devolves by survivorship, whereas obstructed heritage, by

succession.

9. In the case on hand, though the Defendant No.7 becomes

the coparcener and entitled to a share in the suit schedule

properties, as long as she remains alive, the properties do not

devolve upon the plaintiff. At this juncture it is also relevant to

refer to Section 14 of the Hindu Succession Act, 1956, which is

as follows:

“Section 14 : Property of a female

Hindu to be her absolute property.―(1) Any
property possessed by a female Hindu,
whether acquired before or after the
commencement of this Act, shall be held by
 10 O.S. 94/2015-O

her as full owner thereof and not as a limited

owner.

Explanation.―In this sub-section,

“property” includes both movable and
immovable property acquired by a female
Hindu by inheritance or devise, or at a
partition, or in lieu of maintenance or
arrears of maintenance, or by gift from any
person, whether a relative or not, before, at
or after her marriage, or by her own skill or
exertion, or by purchase or by prescription,
or in any other manner whatsoever, and also
any such property held by her as stridhana
immediately before the commencement of
this Act.

(2) Nothing contained in sub-section (1) shall

apply to any property acquired by way of gift
or under a will or any other instrument or
under a decree or order of a civil court or
under an award where the terms of the gift,
will or other instrument or the decree, order
or award prescribe a restricted estate in such
property.”
 11 O.S. 94/2015-O

As per the explanation appended to the aforesaid Section

14, the properties which are in possession of a female Hindu,

whether acquired through partition or inheritance, shall be her

absolute property. In the case on hand, since the Defendant No.7,

being the daughter of Late Hanumachar has acquired her right to

her share in the suit schedule properties, she is by birth a

coparcener in the family of her father Late Hanumachar. As long

as she is alive, the properties acquired by her even by partition or

inheritance shall be her absolute properties and shall not devolve

upon the plaintiff. The succession opens to the plaintiff only upon

the death of Defendant No.7 and not otherwise. The succession to

plaintiff is contingent upon the survival/death of Defendant No.7.

10. The plaintiff has narrated the cause of action to the suit at

Para 7 as to have been arisen about a month ago from filing of

this suit when the Defendant No. 1 to 7 have denied and refused

the plaintiff’s share and attempted to alienate the suit schedule

properties when demanded, which is completely untenable for the

reasons and discussions made in the preceding paragraphs.

 12 O.S. 94/2015-O

11. Upon considering the averments made in the plaint, for the

discussions made in the preceding paragraphs and reasons

accorded therein, this Court is of the opinion that the plaint does

not disclose the cause of action for the reliefs claimed by the

plaintiff and therefore, answers the point for consideration in the

Affirmative and proceeds to pass the following:

ORDER

I.A.No.10 filed by Defendant No.5

under Order VII Rule 11(a) of CPC is
hereby allowed.

Consequently, the plaint is rejected for

want of cause of action.

Office to draw decree accordingly.

(Directly typed by me onto my laptop, corrected and then pronounced by me in

open Court this 19th Day of March, 2024)

Sd/-

(Smt.Aparna.R)
Addl. Civil Judge & JMFC, C.N.Halli.
13 O.S. 94/2015-O

ORDER PRONOUNCED IN OPEN

COURT VIDE SEPARATE SHEET

I.A.No.10 filed by Defendant

No.5 under Order VII Rule 11(a)
of CPC is hereby allowed.

Consequently, the plaint is

rejected for want of cause of
action.

Office to draw decree

accordingly.

ACJ & JMFC, C.N.Halli.