KUM. GEETHA, D/O LATE KRISHNA Vs. NANJUNDASWAMY

JUDGEMENT

(1.) Leave granted.

(2.) In this appeal, we are called upon to decide two questions. The first relates to the true and correct application of the principle underlying the 'rejection of plaints' under Order VII Rule 11, Code of Civil Procedure, 1908 [Hereinafter referred to as 'CPC'], to the facts of the case. The second question relates to the legality of rejection of a plaint in part. For the reasons to follow, we have held that the High Court has committed an error in passing the order impugned, on both counts. First, by misapplying the well-established principles informing Order VII Rule 11 of the CPC, and second, by rejecting the plaint in part, which is again contrary to the law on the subject. We have, therefore, allowed the appeal and dismissed the application under Order VII Rule 11, CPC. We will first indicate the necessary facts.

(3.) Mr. P V Yogeshwaran, learned counsel appearing for the appellants, assisted by Mr. M.A. Chinnasamy, Mrs. C Rubavathi, Mr. C Raghavendren, Mr. V Senthil Kumar, Mr. Devendra Pratap Singh and Mr. Ashis Upadhay submitted that the Plaintiffs along with the Defendants No. 1 to 3 are members of a joint family owning properties mentioned in Schedule A and B of the plaint. He has taken us through the plaint where it is averred that the karta of the family, late Shri Munivenkata Bhovi had many properties and was in a habit of temporarily mortgaging properties for raising finances by executing what are referred to as 'nominal sale deeds'. Once dues were cleared, reconveyance deeds were executed. It is specifically averred that this practice was adopted by the karta to maintain the family and the persons in whose favour these documents were executed were also close acquaintances of the family. As such, the possession of the joint family properties was never parted. It is also pleaded that when the Plaintiffs asked for partition, initially the Defendants did not deny it, but instead, only asked the Plaintiffs to wait till the revenue records were updated so that actual partition could be effected. Hence, Plaintiffs presented a plaint for partition and separate possession.