RAMLAL MANIRAM NAVDHINGE Vs. MANIRAM PATIRAM NAVDHINGE

JUDGEMENT

(1.) This is an appeal by plaintiff whose plaint was rejected under Order 7, Rule 11 of Civil Procedure Code.

(2.) Facts shorn of details are as under : the parties shall be referred to as plaintiff and defendants. Plaintiff is the son of defendant No. 1. Defendant No. 2 is also the son of defendant No. 1 while defendants 3 and 4 are sons of defendant No. 2 and defendants 5 to 7 are the daughters of defendant No. 1. The plaintiff submits that the suit property originally belonged to his grand father Patiram. After his death the property came in the hands of his father defendant No. 1. He submits that it is, therefore, an ancestral joint family property. The plaintiff has therefore acquired interest in the property along with defendants 1 to 7. Plaintiff requested the defendants to effect a partition but they avoided. On the other hand defendant No. 1 executed gift deed in favour of son of defendant No. 2 and also in favour of defendants 5 to 7. He executed those gift deeds on 16-3-2004. It is contended that defendant No. 1 has only l/7th share in the suit property and therefore he was not competent to gift the entire property to defendants 3 to 7. Gift deeds according to plaintiff are therefore void ab initio. Since no partition had taken place and if the defendants intend to transfer their share in the suit property they are bound to give preference to the plaintiff. Plaintiff submits that he has such a right under section 22 of the Hindu Succession Act. Plaintiff submits that he is interested in acquiring the entire property. According to plaintiff cause of action for this suit arose when he made an offer under section 22 in favour of defendants and they declined that offer. Further according to him cause of action arose when defendant No. 1 executed gift deed in favour of defendants 3 to 7. Plaintiff by this suit seeks a decree for declaration that the gift deeds dated 16-3-2004 are void and they should be cancelled and further a declaration that he has a right to purchase the suit property under section 22 of the Hindu Successions Act and for injunction.

(3.) The defendants in the suit after service of the summons appeared and filed an application under Order 7, Rule 11, Civil Procedure Code contending that the suit is barred under Order 2, Rule 2, Civil Procedure Code and it was therefore liable to be rejected. The defendants in the said application contended that the plaintiff had instituted Civil Suit No. 168 of 2004 seeking same reliefs. He has made reference to the gift deeds which according to him were void and the cause of action for that suit was based on the execution of the gift deeds. The defendants submit that since the earlier suit was filed entire claim should have been included in that suit and that having not been done this present suit is barred by Order 2, Rule 2.