IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CIVIL REVISION PETITION No.4568 of 2010 DATE: .02.2011 Between: T.S.Kohli and another …… Revision Petitioner And B.Pramod Kumar Reddy and others …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CIVIL REVISION PETITION No.4568 of 2010 ORDER : This revision petition is filed by the petitioners/defendants 7 and 8 against order dated 14.09.2010 passed by the Chief Judge, City Civil Court, Hyderabad in I.A. No.1609 of 2010 in O.S. No.131 of 2010 by which the lower Court dismissed the petition filed by the defendants 7 and 8 under Order VII Rule 11 C.P.C refusing to reject the plaint. 2) The plaintiff/1st respondent filed the suit in the lower Court for partition of the plaint ‘A’ and ‘B’ schedule properties into three shares and for allotment of one such share to him and for permanent injunction restraining the defendants 7 and 8 from disposing the plaintiffs 1/3 share therein. The plaint ‘A’ schedule consists of 12,100 Sq. yards of site in S.No.129/31 T.S. No.3 in Road No.12, Banjara Hills, Hyderabad. The plaint ‘B’ schedule consists of 3,090 Sq. yards of site in the same survey numbers and in the same road of Banjara Hills, Hyderabad. The 1st defendant/2nd respondent is mother, the 2nd defendant/3rd respondent is brother and the defendants 3 to 6/respondents 4 to 7 are sisters of the plaintiff. The defendants 7 and 8/petitioners 1 and 2 are purchasers of the plaint ‘A’ and ‘B’ schedule properties from the 1st defendant/mother. Late B.Ganga Reddy was the plaintiff’s father and the 1st defendant’s husband. The plaint ‘A’ schedule property was purchased by the 1st defendant in the year 1963 and the plaint ‘B’ schedule property was purchased by the 1st defendant in the year 1968 by way of separate registered sale deeds. According to the plaintiff, the plaint ‘A’ schedule property was purchased by late B.Ganga Reddy in the name of the 1st defendant and entire sale consideration was paid by late B.Ganga Reddy to the vendor and the said fact was also mentioned in the sale deed in the endorsement of the Registrar. Further, it is the plaintiff’s case that the plaint ‘B’ schedule property was purchased in the name of the 1st defendant with the funds of joint family earnings and that the plaintiff himself paid the entire sale consideration to the vendor and that the said fact was also mentioned in the sale deed in the endorsement of the registrar. B.Ganga Reddy died on 10.10.1996. Therefore, the plaintiff alleges that the plaint A and B schedule properties are joint family properties in which the plaintiff has got 1/3 share and that he is in joint possession of the properties as per law. The plaintiff valued his 1/3 share in plaint ‘A’ and ‘B’ schedule properties at Rs.30,38,00,000/- and paid fixed Court Fees of Rs.200/- for the relief of partition under Section 34 of the Andhra Pradesh Court Fees and Suits Valuation Act on the ground that he is in joint possession of the schedule properties. The plaintiff did not separately value the relief of permanent injunction against the defendants 7 and 8 from disposing of the plaintiff’s 1/3 share in the plaint ‘A’ and ‘B’ schedule properties and did not pay separate Court Fees for the said relief. 3) According to the plaintiff, late B.Ganga Reddy gave Ac.5.00 of agricultural land apart from huge jewellery and cash to his daughters who are the defendants 3 to 6 towards Pasupukumkuma at the time of their respective marriages and settled them and since their marriages were performed prior to the year 1975, the defendants 3 to 6 have no right in the plaint ‘A’ and ‘B’ schedule properties. 4) The defendants 7 and 8 filed the present petition in the lower Court for rejection of the plaint on three grounds viz., (1) that the suit for partial partition is not maintainable in law, (2) that Section 4 of the Binami Transactions (Prohibition) Act, 1988 is a bar for the suit and (3) that fixed Court Fees of Rs.200/- paid under Section 34(1) of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956 is not proper. The lower Court rejected all the three grounds urged by the defendants 7 and 8 for rejection of the plaint. In this revision petition, the revision petitioners did not press the point relating to payment of fixed Court Fees under Section 31 of the Andhra Pradesh Court Fees and Suits Valuation Act. 5) On facts, there is no dispute that the present suit is one for partial partition of the joint family properties. In the plaint itself, it is stated that previously the plaintiff filed O.S. No.406 of 2007 on the file of III Additional Chief Judge, City Civil Court, Hyderabad for partition and separate possession and that when the defendants 7 and 8 herein who were the defendants 3 and 4 in the previous suit filed an application I.A. No.136 of 2008 in O.S. No.406 of 2007 under Order VII Rule 11 C.P.C to reject the plaint, the III Additional Chief Judge by order dated 26.02.2008 allowed the said application and rejected the said plaint on the ground of no cause of action and that the said order was confirmed by the High Court in C.C.C.A No.61 of 2008 on 17.12.2008. In this appeal, there is no dispute that joint family of the plaintiff owns and possesses total number of 16 properties, out of which the plaintiff had chosen to file the suit for partition in respect of only two properties. According to the petitioners, there are 15 other properties which are not included in this suit for partition. The plaintiff contends that he has got every right to file the suit for partial partition. According to the plaintiff, family elders are working for amicable settlement in respect of rest of the properties and they can be amicably settled out of Court. The plaintiff further contends that Binami Transactions (Prohibition) Act, 1988 has no application to joint family properties. 6) With regard to maintainability of the suit for partial partition, the 1st respondent’s counsel placed reliance on Kashinathsa Yamosa Kabadi V. Narsingsa Bhaskarsa Kabadi[1] of the Supreme Court. In the reported decision, all the members of the joint family voluntarily referred the dispute relating to partition to panchas and the panchas in the first instance decided that each branch has to get a fourth share in the properties and the decision was accepted by the parties and division of properties made from time to time was also accepted by the parties; and subsequently, when the panchas were unable to proceed with the division, the matter was referred by consent of the parties to one Godkhindi who divided some of the outstandings with consent of the parties, but was unable to divide the remaining properties. In those circumstances, the Supreme Court held that it is always open to members of a joint Hindu family to divide some properties of the family and to keep the remaining undivided and that such properties which are not partitioned can be divided later on and that such division is to be made consistently with the rules of Hindu Law. The said reported decision of the Supreme Court cannot have any application to facts of the present case where the plaintiff instituted a suit for partition of only two of the properties leaving 15 other properties which are yet to be divided. This is not a case where the plaintiff is seeking partial partition of the properties with the consent of all the other joint owners. 7) In Jageshwari Devi Vs. Shatrughan Ram[2], the Supreme Court noticed distinction between non disclosure of cause of action and defective cause of action and observed: “It is relevant to state that there is a difference between the non-disclosure of a cause of action and defective cause of action: while the former comes within the scope of Order VII Rule 11, the latter is to be decided during trial of the suit. The contention raised on behalf of the appellant that the cause of action disclosed is vague and incomplete, is not a ground for rejection of the plaint, under Order VII Rule 11 CPC no exception can be taken to the order.” The proceedings in O.S.No.406/2007 when the III Additional Chief Judge, City Civil Court, Hyderabad rejected the plaint filed by the plaintiff holding that the plaint is liable to be rejected for want of cause of action, Division Bench of this Court in C.C.C.A.No.61 of 2008, upheld the said order and dismissed the appeal filed by the plaintiff. The ground on which previously the plaint in O.S.No.406/2007 was rejected for non disclosure of cause of action to file the suit for partition in respect of one item of joint family property only. Previously both the plaint A and B schedule properties herein were shown as a single property of 15,190 square yards as both the properties are adjacent to each other. It is contended by the 1st respondent’s counsel that plaint in the previous suit in O.S.No.406/2007 was rejected on the ground that the plaintiff did not give prior notice to the parties for partition and therefore, the plaint did not disclose cause of action. On perusal of orders in previous proceedings in O.S.No.406/2007 and C.C.C.A.No.61/2008, it is evident that plaint therein was rejected by the Courts on the ground inter alia that suit for partial partition of the joint family properties is not maintainable and the plaint did not disclose any valid or legal cause of action for maintaining a suit for partial partition of the joint family properties. Simply because the plaintiff got issued a legal notice through an advocate prior to filing of the present suit O.S.No.31/2010 in the lower Court, it cannot be said that previous defect is rectified now. Division Bench of this Court in Judgment dated 17.10.2008 in C.C.C.A.No.61/2008 observed in the penultimate paragraphs as follows while confirming order of the lower Court rejecting the plaint therein: “In the above facts and circumstances of the case, there is no other go except to infer that the intention of the plaintiff to file the plaint for partition of the schedule property in question alone by leaving all the other properties, would not fortify the alleged cause of action shown by the plaintiff and apart from that, the same creates an illusory cause of action invented for the purpose of maintaining the suit only.” Therefore, for the above reasons, I have no hesitation to hold that the plaint is liable to be rejected now also as it did not disclose cause of action to maintain the suit for partial partition. This is not a case of defective cause of action, but is a case of non disclosure of valid cause of action for maintaining a suit for partial partition. 8) It is contended by the appellants’ counsel that the suit is barred by Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 (In short, the Act) as the plaintiff claimed the plaint ‘A’ and ‘B’ schedule properties on the ground that joint family is the real owner and the first defendant in whose name the sale deeds for the properties are standing, is a Benamidar for the joint family. Section 4 of the Act reads as follows: “4 . Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply.- (a) where the person in whose name the property is held id a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.” 9) On the other hand, it is contended by the 1st respondent’s counsel that Section 4 of the Act has no application to the case of joint Hindu family. The appellants’ counsel contended that sub-section (3) of Section 4 of the Act stands as an exception to sub-sections (1) and (2) of Section 4 of the Act in case the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family. According to the appellants, the 1st defendant, who is wife of late B.Ganga Reddy was not a coparcener of the Hindu undivided family when the registered sale deeds were obtained in her name in the years 1963 and 1968 in respect of the plaint A and B schedule properties and therefore, the exception contained in sub Section (3) of Section 4 of the Act has no role to play in this case. He placed reliance on Rabthi Devi Vs. Ramdutt[3] in support of his contention that Section 4(1) is a bar for filing the present suit for partition of the properties standing in the name of the 1st defendant. The senior counsel for the 2nd respondent/1st defendant also supports the contention of the appellants’ counsel in this regard. Since Division Bench of this Court in the previous suit proceedings and this Court now came to the conclusion that the plaint is liable to be rejected under Order VII Rule 11 C.P.C. for lack of cause of action to maintain a suit for partial partition, I do not wish to express my opinion on applicability of Section 4 (1) of the Act in this case and the said contention is left open to be decided in appropriately framed proceedings. It is sufficient for the purpose of this revision petition to hold that the impugned order passed by the lower Court is unsustainable in law and runs counter to the decision rendered by Division Bench of this Court previously in C.C.C.A.No.61/2008. 10) In the result, the revision petition is allowed, ordering rejection of plaint in O.S.No.131 of 2010 of the lower Court, with costs. _______________________________ SAMUDRALA GOVINDARAJULU, J February 08, 2011 ksh _______________________________ SAMUDRALA GOVINDARAJULU, J February , 2011 ksh [1] AIR 1961 Supreme Court 1077 [2] (2007) 15 Supreme Court Cases 52 [3] 1997 (10) Supreme Court 26