NATHMAL GOENKA Vs. AJAY KUMAR GOENKA

JUDGEMENT

(1.) THIS revision petition has arisen out of the order dated the 14th August, 1997 passed by the First Subordinate Judge, Muzaffarpur in Title Partition Suit No. 316 of 1994, whereby the prayer made for and on behalf of the defendant -petitioner for return of the plaint under Order 7 Rule 11(a) of the Civil Procedure Code, as on the face of it, there remained no cause of action for the suit has been rejected.

(2.) ADMITTEDLY the partition suit has been filed by the son against the father and others assuming himself to be a coparcener in the co -parcener joint family. The defendant petitioner, that is, father contended that the property which was said to be partitioned, is self acquired property of the father, as he got land by way of partition in the previous partition suit no. 52 of 1952 and that in the self acquired property the question of co -par -cener does not Stand either before the Hindu Succession Act, 1956 came into force or after its enactment. Hence the prayer was made for return of the plaint as the plaintiffs ' suit was premature one and he had no cause of action for partition of the self acquired property during his life time.

(3.) IT is submitted by the learned counsel for the petitioner that even if the decree was prior to the Hindu Succession Act, 1956, then also by analogy of law the allotment got by the petitioner in the earlier partition suit became his self acquired property and even in that case also the question of the plaintiff getting share during the life time of his father in the father 's self acquired property does not arise at all.