SURESH Vs. PARVATHAMMA

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel appearing for the petitioner.

(2.) The impugned order dtd. 3/2/2023, which is assailed before this Court is rejection of application filed by defendant No.2 under Order VII Rule 11(a) & (d) read with Sec. 151 of CPC in O.S.No.973/2018 on the file of V Additional Senior Civil Judge and JMFC., at Mysuru.

(3.) The main contention of the learned counsel appearing for the petitioner before this Court is that the Trial Court has committed an error in dismissing the application in coming to the conclusion that the Court has to look into the averments of the plaint. The learned counsel would vehemently contend that the plaintiffs by themselves in their plaint have stated that, the sale has taken place on 7/6/2002 and 7/6/2024, as such the said transactions are saved by the proviso to Sec. 6(1) of Hindu Succession Act, 1956, and the said principle was applied and observed by the Apex Court in plethora of cases, as at the time of transaction the daughters have not acquired the status of coparcener, as such the reasoning of the Trial Court that veracity of the legal necessity has to be examined is flawed and if accepted and allowed to continue it would tantamount to defeat all the transaction taken place earlier to the amendment to Sec. 6 of the Hindu Succession Act, 1956. The learned counsel also would vehemently contend that, as pertaining to the right of the first plaintiff (now dead), the limitation to challenge the alienation by kartha would be either three years as per Articles 58 & 59 or 12 years as per Article 109 of the Limitation Act, 1963, at any stretch the suit claim as to item No.1 of the suit schedule property is hopelessly barred by limitation. The learned counsel also would vehemently contend that the Trial Court has committed an error in dismissing the application mechanically instead of appreciating the facts of the case and proceeded to dismiss the application. Hence, it requires interference.