HONGEPPA Vs. KAMALAMMA

JUDGEMENT

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

(2.) The factual matrix of the case of the respondent No.1/plaintiff before the Trial Court while seeking the relief of partition that she claimed the share in respect of the suit schedule properties contending that she are also entitled for a share in the suit schedule properties which are ancestral properties and the appellant herein filed an application under Order VII Rule 11(a) and (d) read with Sec. 151 of CPC, wherein it is contended that the suit schedule properties being the co-parcernary properties of Manjappa, subsequent to the death of said Manjappa, children of Manjappa entered into registered partition dtd. 24/3/2000 wherein the suit schedule properties were partitioned and there is severance of joint family status. Defendant No.1 and defendants Nos.2 to 4 have partitioned the suit schedule properties and portion of properties were conveyed to third parties by executing a deed of conveyance. As per the provisions of Sec. 6 of the Hindu Succession (Amendment) Act, 2005 does not affect or invalidate the previous partition effected in the family before 20/12/2004. In this case, the partition deed is dtd. 24/3/2000 and filing of the suit is a abuse of process and the same is barred by law. Hence, the claim of the plaintiff is liable to be rejected.

(3.) For the said application, the plaintiff filed objections contending that the very application is not maintainable since the suit is pending for evidence of the defendants and the plaintiff has already been examined and present application is filed belatedly with an intention to drag the proceedings. No order of rejection of plaint can be passed for want of cause of action as it is a mixed question of law and fact which can be decided only in a full-fledged trial.