Manipal University vs Sri Ramanjinappa H

(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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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']. .

9. 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.

10. 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.

13

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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."

23. 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."

24. 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.

25. 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.

28. 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.

29. 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.

30. 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.

31. 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.

33. 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.

34. 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.

35. 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