LAWS(KAR)-2017-1-249

K.L. SRINIVAS Vs. LAKSHMAMMA

Decided On January 16, 2017
K.L. Srinivas Appellant
V/S
LAKSHMAMMA Respondents

JUDGEMENT

(1.) The children of the first defendant filed suit for partition and separate possession. The Second defendant is the son and first defendant is the brother of the first plaintiff and the defendants 3 and 4 are the purchasers of the suit schedule property. The plaintiffs filed the suit for partition and separate possession in respect of the schedule property. The purchasers filed an application under Order 7, Rule 11 CPC for rejection of the plaint. The purchasers have taken ground that, the suit is not maintainable as defendants 1 and 2 have sold the northern portion of the suit schedule property to fourth defendant on 03.06.1991 and the southern portion to third defendant on 25.01.1992 both of which are prior to 20.12.2004. As such, the suit is not maintainable in view of section 6 of the Hindu Succession Act. The first proviso to said Act bars the Court from entertaining the matter. The provision says that, "nothing contained in this sub section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition or property which are taken place before the 20th day of December 2014". This very provision was the subject matter considered by the Hon'ble Supreme Court in the case of Prakash and Others v. Phulavati and Others reported in (2016) 2 SCC 36 : [2016(1) HLR (S.C.) 94] in which, the Hon'ble Supreme Court at paras 22 and 23 has held as follows; "22. In this background, we find that the provision to Section 6(1) and Subsection (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20-12-2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transaction prior to 20.12.2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20-12-2004. In no case statutory notional partition even after 20.12.2004 could be covered by the Explanation or the proviso in question. 23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparcener's as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-2-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation."

(2.) In respect of plaintiffs 5 and 6, the learned counsel for the petitioners referred the provision of Hindu Minority and Guardianship Act, 1956. Referring to section 6 of the Hindu Minority and Guardianship Act, 1956, the learned counsel for the petitioner submits that, under the said provisions, the application filed by the petitioners could have been allowed by rejecting the plaint filed by the respondents herein.

(3.) The learned counsel for the respondents submits to dismiss this petition. The suit was filed in respect of land measuring 2 acres 16 guntas and 2 acres 19 guntas. The rejection of the plaint has to be done after framing preliminary issues and thereafter, the order could have been passed. In respect of this submission, the learned counsel for the petitioners relied upon the Division Bench decision in the case of Mr. Jagadish Poonja v. The South Canara Hotel Complex Pvt. Ltd., Bangalore and Others, 2015 (3) KCCR 2754 (DB) : [2016(1) ICC (Karn.) (DB) 20] in which the Supreme Court at para 21 as held as follows; "21. Question of limitation is ordinarily a mixed question of law and fact. Plea of limitation cannot be decided as an abstract principle of law divorced from facts, as in every case, the starting point of limitation has to be ascertained, which is entirely a question of fact. Therefore, it is now well settled that a plea of limitation is a mixed question of fact and law. The jurisdiction to try issue of law apart from issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issue of law alone. But the Code confers no jurisdiction upon the Court to try mixed issues of law and fact as preliminary issue. Therefore, the issue regarding limitation cannot be tried as a preliminary issue."