The Supreme Court has held that a second application under Order VII Rule 11 CPC, raising substantially the same ground already decided earlier in the same litigation, is barred by interlocutory res judicata, and such bar is not avoided merely because the later application is filed by another defendant or invokes additional sub-clauses of Order VII Rule 11, where the parties litigate under the same title and the basis of the earlier decision remains unchanged.
The Court further held that Section 6(5) of the Hindu Succession Act, 1956 is only a saving clause preserving certain pre-December 20, 2004 partitions from the operation of the substituted Section 6; it does not create a statutory bar to the institution of a suit for partition, and whether a valid partition within the meaning of Section 6(5) exists, and whether it binds persons who were not parties to it, are matters for trial and not for rejection of plaint under Order VII Rule 11(d) CPC.
The Court also held that where a Hindu male died intestate prior to the 2005 Amendment leaving behind daughters who are Class I heirs, their right in the father’s share accrued under the proviso to the erstwhile Section 6 read with Section 8 of the Hindu Succession Act, and that right is independent of the coparcenary rights conferred by the 2005 Amendment and is unaffected by Section 6(5). On that basis, the plaint disclosed a valid cause of action and was not liable to be rejected at the threshold.
A Two-Judge Bench comprising Justice Sanjay Karol and Justice Augustine George Masih first examined the scope of Order VII Rule 11 CPC and reiterated that for deciding an application under Order VII Rule 11(d), only the averments in the plaint are relevant, the plaint must be read as a whole, and disputed questions of fact cannot be adjudicated at that stage. The Bench emphasized that the provision is meant to weed out suits that are ex facie barred by law, but it does not permit the Court to test whether the plaintiffs will ultimately succeed on merits.
On res judicata, the Bench observed that the respondents could not avoid res judicata by invoking additional sub-clauses of Order VII Rule 11 in the second application, since grounds under clauses (a) and (b) could and ought to have been raised earlier. On the interpretation of Section 6(5) of the Hindu Succession Act, the Bench held that it is a saving clause of strict and narrow application, not a jurisdictional bar to the institution of a suit. It saves from the reach of the 2005 Amendment only those partitions effected before December 20, 2004 by a registered deed or a court decree. It does not foreclose adjudication where the plaint disputes the validity or binding nature of the alleged partition.
The Bench held that the validity of the oral partition of 1985, the Palupatti of 1988, and the registered Partition Deed of 2000, especially when the daughters were not parties and no share was allotted to them, were contested questions of fact and law that required trial and could not be decided at the threshold under Order VII Rule 11.
The Bench also considered the scheme of succession under the unamended Section 6 read with Section 8 of the Hindu Succession Act and held that since the propositus died intestate in 1985 leaving behind daughters who were Class I heirs, the proviso to the erstwhile Section 6 stood attracted. As a result, a notional partition was deemed to have taken place immediately before his death, and his undivided share devolved by intestate succession under Section 8 on all Class I heirs including the daughters. This right accrued in 1985, was independent of the 2005 Amendment, and was unaffected by Section 6(5).
The Bench therefore held that the suit was maintainable at least to the extent of the daughters’ claim in the father’s share, and that even if the partition deed of 2000 was assumed to be valid, that could not extinguish their accrued right without adjudication.
The Supreme Court additionally held that the High Court, while exercising revisional jurisdiction under Section 115 CPC, exceeded the permissible limits of that jurisdiction by conducting a de novo appraisal of the merits of the dispute, the scope of the partition deed, and the rights of the parties under Section 6(5) at the threshold stage. The Trial Court’s order dismissing the second application was held to be a reasoned order correctly applying res judicata and the limited scope of Order VII Rule 11.
Briefly, the appeal arose from the judgment, whereby the High Court of Karnataka allowed a second application under Order VII Rule 11(a), (b) and (d) of the Code of Civil Procedure, 1908, set aside the Trial Court’s order dated November 15, 2022, and rejected the plaint in a partition suit instituted by the daughters of a Hindu male who had died intestate on March 06, 1985.
The propositus, B.M. Seenappa, died intestate leaving behind three daughters, one widow, and four sons. The daughters, who were the plaintiffs, asserted entitlement to a share in the suit schedule properties as legal heirs. The defendants contended that the properties had first been orally divided among the sons on September 06, 1985, and that thereafter, on October 25, 1988, the daughters received money and endorsed a written family partition document (Palupatti) as consenting witnesses. The plaintiffs disputed these assertions and treated the registered Partition Deed dated June 16, 2000, executed among the mother and sons alone, as the only relevant partition, alleging that it had been executed secretly and without allotting any share to them.
On July 11, 2007, the plaintiffs filed the suit seeking partition of five schedule properties and allotment of 1/8th share to each of the eight legal heirs. On January 25, 2008, Defendant Nos. 1 to 3 filed application under Order VII Rule 11(d) CPC seeking rejection of the plaint on the ground that the suit was barred by the proviso to Section 6(1), Section 6A(d) of the Karnataka Amendment, and Section 6(5) of the Hindu Succession Act, 1956. The Trial Court allowed that application on November 29, 2008, but the High Court held that even assuming there was a partition in 2000 and the daughters did not get a coparcenary share, the father having died intestate, they still had a share in the father’s share and the plaint could not be rejected at the threshold. That order attained finality.
Thereafter, the legal representatives of Defendant No. 4 alone filed a second application under Order VII Rule 11(a), (b) and (d) CPC, contending that in view of Vineeta Sharma v. Rakesh Sharma, Section 6(5) of the Hindu Succession Act operated as a complete bar to reopening partitions effected before December 20, 2004. The plaintiffs objected on the grounds of res judicata and also asserted their entitlement under Section 8 of the Hindu Succession Act. The Trial Court dismissed the second application on November 15, 2022 holding that the 2013 order operated as res judicata and that Section 6(5) did not create a bar to the suit; however, the High Court in revision reversed that view and rejected the plaint.
Appearances:
Kiran Suri, Sr. Adv., S.j. Amith, Adv., Aishwarya Kumar, Adv., Dr. Vipin Gupta, AOR, Krishna Kumar, Adv., Nandani Gupta, Adv., for Appellants
Shankar Divate, AOR, Anand Sanjay M Nuli, Sr. Adv., Dharam Singh, Adv., Suraj Kaushik, Adv., Nanda Kumar K B, Adv., Akhila Wali, Adv., Shiva Swaroop, Adv., Abhishek Kanyalur, Adv., Divya Sinha, Adv., Ashritsai Torgal, Adv., Tanya Chillar, Adv., M/S. Nuli & Nuli, AOR, Christi Jain, AOR, Puneet Jain, Sr. Adv., Om Sudhir Vidyarthi, Adv., Akriti Sharma, Adv., Aditya Jain, Adv., Siddharth Jain, Adv., Harsh Jain, Adv., Yogit Kamat, Adv., Sudhanshu Prakash, AOR, Anisha Agarwal, Adv., Arpit Yadav, Adv., Ishrafil Ansari, Adv., for Respondents
