ARVIND KUMAR BAJORIA Vs. KARTIK BAJORIA

JUDGEMENT

(1.) Instant revision petition is preferred by petitioner defendant aggrieved from order dtd. 22/3/2021 in civil suit No.111/2020 passed by learned Additional District Judge No.7, Jaipur Metro-II whereby an application under Order VII Rule 11 CPC was dismissed.

(2.) Learned counsel for petitioner defendant while placing reliance upon grounds of revision petition submitted that plaintiffs respondents are sons of petitioner defendant and they have filed a suit for partition, rendition of account and permanent injunction. Learned counsel while referring pedigree of the family has submitted that Shri Krishan Bajoria (died on 11/3/1993), father of present petitioner married to Smt. Lalita (died on 25/1/2020) And they were blessed with 3 daughters and 2 sons and out of these one sister of present petitioner Aruna has expired on 6/5/2020. He further submitted that before death, late Shri Krishan Bajoria has executed a will on 18/1/1993 in favour of Smt. Lalita for all his movable and immovable assets and Smt. Lalita has executed a registered will bequeathing her movable and immovable assets in favour of present petitioner. He further submitted that present petitioner is an absolute owner of the property inherited by him after death of Smt. Lalita Bajoria in accordance with will dtd.10/9/2012. He also submitted that none of the legal heirs of Shri Krishna or Smt. Lalita were made or arrayed as a party defendants in the suit to claim partition, rendition of account and permanent injunction. He further submitted that during lifetime of father of the plaintiffs, they cannot claim partition of the properties inherited by living father. He further placed reliance upon judgement in case of Rohit Chauhan Vs. Surinder Singh and Ors AIR 2013 SC 3525 and submitted that the suit filed by the plaintiffs is not maintainable and same is liable to be dismissed. He further placed reliance upon judgement in case of Sagar Gambhir Vs. Sukhdev Singh Gambhir and Ors. , Devender Kumar Since Deceased through LRS Vs. Aruna Bakshi and Ors. 2023 DHC -DB and submitted that there is no presumption that the estate is joint or property belongs to a Hindu undivided or joint family. He further submitted that there is no presumption that the business standing in the name of any of member of joint family is a joint family business. He further submitted that a person who brings a case has to show the fact as claimed by him so as to continue the civil suit before the Civil Court. He further referred judgement in case of Amar Saxena Vs. Aashray Saxena (S.B. Civil Revision Petition No.15/2018 order dtd. 16/5/2024) and submitted that in identical matter while considering a revision petition against order of dismissal of application under order VII Rule 11 CPC the revision petition was allowed and suit was rejected. He further referred the written submissions and submitted that the principle of law as declared by Hon'ble Supreme Court clearly shows that if a suit is frivolous and it is ultimately going to waste time of the Court then same has to be rejected at this stage.

(3.) Learned counsel further referred order dtd. 6/9/2023 passed the by learned Single Judge in Misc. Petition No.120/2023 by the Bombay High Court in matter relating to testamentary succession of the properties claimed in the suit. He further referred a copy of order dtd. 11/7/2024 in appeal (L) No.29897/2023 passed by the Division Bench of the High Court of Bombay in a matter relating to testamentary succession in relation to present properties. He further referred the judgement in case of Commissioner of Wealth Tax, Kanpur and Ors. Vs. Chander Sen and Ors. , Yudhister Vs. Ashok Kumar and Uttam Singh Vs. Saubhag Singh and Ors. and submitted that the suit filed by sons against father for partition of ancestral property is not maintainable in view of provision of the Hindu Succession Act, 1956. He further referred judgement in case of T. Arvindandam Vs. T.V. Satyapal and Ors. , Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (dead) through Lrs SC/02252012 and Gangamma and Ors. Vs. G. Nagarthnamma and Ors, SC/118/2009, S.P. Chengalvarya Naidu (Dead) by LRs Vs. Jagannath (Dead) by Lrs and Ors. and Kishore Samrite Vs. State of UP and Ors. and submitted that plaintiffs have filed a suit to claim partition of joint Hindu family properties but without disclosure about creation of joint Hindu family and acquisition of status of coparcener in HUF by plaintiffs, suit is not maintainable. He also submitted that the plaint itself is vague and ambiguous and filed without disclosing proper facts and arraying proper parties. He also submitted that the plaintiffs have included all properties which were acquired in individual capacity and without arraying the legal heirs of Late Shri Krishan and Late Smt. Lalita a suit is filed for partition. He also submitted that proceedings relating to testamentary succession is already decided by the Bombay High Court. He further submitted that plaintiffs have concealed the material facts and concealment amounts to fraud. He further submitted that plaintiffs are no entitled to seek any partition and suit is not maintainable. At last, he submitted that the trial court has committed serious error while dismissing application under Order VII Rule 11 CPC.