CODE OF CIVIL PROCEDURE, 1908 – Or. VII R. 11 – Rejection of plaint – Second application under O. VII R. 11 – Res judicata – Interlocutory res judicata – Scope – HINDU SUCCESSION ACT, 1956 – Ss. 6, 6(5) & 8 – Partition suit by daughters – Pre-2004 partition – Saving clause – Independent right of daughters as Class I heirs – Maintainability of suit. Plaintiffs/daughters instituted suit for partition claiming share in properties of father who died intestate in 1985 – Defendants relied on registered Partition Deed dated 16.06.2000 and earlier oral partition/Palupatti to contend that daughters had no share – Earlier application under Order VII Rule 11(d) CPC seeking rejection of plaint on ground of statutory bar under Section 6 HSA dismissed by High Court in Regular First Appeal holding that even assuming validity of partition and absence of coparcenary rights, daughters had right in father’s share under Section 8 HSA – Said order attained finality – After more than eight years, legal representatives of one defendant filed second application under Order VII Rule 11(a), (b) and (d) CPC relying on decision in Vineeta Sharma v. Rakesh Sharma and contending that Section 6(5) HSA barred suit – High Court allowed revision, rejected plaint and held that Section 6(5) saved partition deed and operated as bar – Sustainability. Held : Second application under Order VII Rule 11 CPC was barred by principles of res judicata and interlocutory res judicata. Issue whether plaint was liable to be rejected on ground of statutory bar under Section 6 HSA had already been directly and substantially decided by High Court in earlier proceedings and attained finality. Defendants and legal representatives litigated under same title within meaning of Explanation VI to Section 11 CPC. Mere invocation of additional sub-clauses of Order VII Rule 11 CPC in subsequent application did not alter substance of controversy.

advocatemmmohan

APEX COURT HELD THAT 

CODE OF CIVIL PROCEDURE, 1908 – O. VII R. 11 – Rejection of plaint – Second application under O. VII R. 11 – Res judicata – Interlocutory res judicata – Scope – HINDU SUCCESSION ACT, 1956 – Ss. 6, 6(5) & 8 – Partition suit by daughters – Pre-2004 partition – Saving clause – Independent right of daughters as Class I heirs – Maintainability of suit.

Plaintiffs/daughters instituted suit for partition claiming share in properties of father who died intestate in 1985 – Defendants relied on registered Partition Deed dated 16.06.2000 and earlier oral partition/Palupatti to contend that daughters had no share – Earlier application under Order VII Rule 11(d) CPC seeking rejection of plaint on ground of statutory bar under Section 6 HSA dismissed by High Court in Regular First Appeal holding that even assuming validity of partition and absence of coparcenary rights, daughters had right in father’s share under Section 8 HSA – Said order attained finality – After more than eight years, legal representatives of one defendant filed second application under Order VII Rule 11(a), (b) and (d) CPC relying on decision in Vineeta Sharma v. Rakesh Sharma and contending that Section 6(5) HSA barred suit – High Court allowed revision, rejected plaint and held that Section 6(5) saved partition deed and operated as bar – Sustainability.

Held : Second application under Order VII Rule 11 CPC was barred by principles of res judicata and interlocutory res judicata. Issue whether plaint was liable to be rejected on ground of statutory bar under Section 6 HSA had already been directly and substantially decided by High Court in earlier proceedings and attained finality. Defendants and legal representatives litigated under same title within meaning of Explanation VI to Section 11 CPC. Mere invocation of additional sub-clauses of Order VII Rule 11 CPC in subsequent application did not alter substance of controversy.

Decision in Vineeta Sharma v. Rakesh Sharma did not constitute change in law affecting foundation of earlier judgment. Earlier order proceeded not on basis of coparcenary rights under amended Section 6 but on independent rights of daughters as Class I heirs under Section 8 upon intestate death of father. Said legal position remained unaffected by Vineeta Sharma.

Section 6(5) HSA is only saving clause preserving partitions effected before 20.12.2004 through registered deed or decree of Court from operation of amended coparcenary rights introduced in 2005 Amendment. Provision does not create jurisdictional bar to institution of partition suit. Whether alleged partition was valid, binding and enforceable against daughters who were not parties thereto are mixed questions of fact and law requiring trial and evidence.

Under proviso to erstwhile unamended Section 6 read with Section 8 HSA, where Hindu male died intestate leaving behind female Class I heirs, his undivided interest in coparcenary property devolved by intestate succession and not survivorship. Thus, daughters acquired independent right in father’s share immediately upon his death in 1985, wholly independent of 2005 Amendment and unaffected by Section 6(5).

At stage of Order VII Rule 11 CPC, Court must confine itself to plaint averments and cannot adjudicate disputed questions relating to validity of partition, oral family arrangement, relinquishment or estoppel. High Court exceeded revisional jurisdiction under Section 115 CPC by virtually deciding merits of suit at threshold stage.

Satyadhyan Ghosal v. Deorajin Debi; Mathura Prasad Bajoo Jaiswal v. Dossibai Jeejeebhoy; Vineeta Sharma v. Rakesh Sharma; Ganduri Koteshwaramma v. Chakiri Yanadi; Nusli Neville Wadia v. Ivory Properties; Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express, followed and relied on.

(Paras 35 to 71)

HELD

Principle of res judicata applies not only between separate suits but also between successive stages of same litigation. Once High Court had finally decided maintainability of plaint in earlier Order VII Rule 11 proceedings, same issue could not be reagitated through subsequent application by another defendant litigating under same title. (Paras 34 to 42)

Section 6(5) HSA is merely saving clause protecting completed pre-20.12.2004 partitions from operation of amended Section 6 and does not create jurisdictional bar to institution of suit for partition. (Paras 47 to 53)

Whether registered partition deed executed without participation or consent of daughters is valid and binding upon them constitutes mixed question of fact and law requiring adjudication at trial and cannot be conclusively determined under Order VII Rule 11 CPC. (Paras 54 to 58)

Upon intestate death of Hindu male in 1985 leaving behind daughters as Class I heirs, proviso to erstwhile Section 6 read with Section 8 HSA caused his undivided coparcenary interest to devolve by succession and not survivorship. Such right accrued independently of 2005 Amendment and survives irrespective of Section 6(5). (Paras 59 to 67)

High Court exceeded scope of revisional jurisdiction under Section 115 CPC by undertaking de novo adjudication on merits and rejecting plaint despite existence of disputed questions requiring evidence. (Paras 68 and 69)

RESULT

Appeal allowed. Judgment of High Court rejecting plaint set aside. Order of Trial Court dismissing second application under Order VII Rule 11 CPC restored. Plaint in partition suit restored to file. Status quo regarding suit properties directed to continue pending trial.