[2025:RJ-JP:15175] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Revision Petition No. 43/2021 1. Pramod Rai Bhatt Son Of Late Shri Balwant Rai Bhatt, Aged About 68 Years, Resident of Plot No. E-111, Banipark Exetension, Shastri Nagar, Jaipur Rajasthan. 2. Hashad Bhatt Son Of Late Shri Balwant Rai Bhatt, Aged About 60 Years, Resident of Plot No. E-111, Banipark Extension, Shastri Nagar, Jaipur, Rajasthan. ----Defendant-Petitioners Versus Yogesh Bhatt Natural Father Harshad Bhatt, Adopted Son Of Shri Pramod Rai Bhatt, aged 68 years, Resident of Plot No. E-111, Bani Park Exetension, Shastri Nagar, Jaipur, Rajashtan. Presently at 1/194, Malviya Nagar, Jaipur. ----Plaintiff-Respondent For Petitioner(s) : Mr. Nirmal Kumar Goyal For Respondent(s) : None present HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 11/03/2025 1. The instant revision petition is preferred by the petitioners- defendants aggrieved from dismissal of application under Order VII Rule 11 CPC on 16.02.2021 in Civil Suit No.830/2020 passed by learned Civil Judge (North), Jaipur Metropolitan-II. 2. Learned counsel for the petitioners while referring grounds of revision petition has submitted that respondent-plaintiff has filed a civil suit for partition and permanent injunction against father and brother of father for division of property left by father of present petitioners. He further submitted that a suit is filed on the ground that the biological father of plaintiff Harshad Bhatt is a habitually [2025:RJ-JP:15175] (2 of 7) [CR-43/2021] drunkard person and taking advantage of his condition, defendant No.1 has got executed a relinquishment deed in his favour from other co-sharers. The plaintiff has claimed that he is having birth right to succeed the property left by his grandfather so filed a suit for partition. He further submitted that after receipt of notice, an application under Order 7 Rule 11 CPC was filed on the ground that father of defendants expired in year 2009 and after death of Balwant Rai, the property devolved upon present defendants, four sisters of defendants and mother of defendants but after death of mother of defendants, the property devolved upon remaining legal heirs of Late Shri Balwant Rai. He further submitted that four sisters and defendant No.2 have executed a relinquishment deed in favour of defendant No.1 and since then defendant No.1 is exclusive owner of the suit property. He further submitted that as per averment made in plaint, the plaintiff is not residing in the suit property and is not having any possession over the suit property, and a civil suit is not maintainable for want of possession. He further submitted that the father of plaintiff is still alive and the plaintiff has no locus to file a suit for partition. He also submitted that the plaintiff has not filed Court fee as per market rate and without a proper valuation and payment of court fee, the suit is not maintainable. 3. Learned counsel for the petitioners placed reliance upon judgment of Division Bench in case of Vijay Goyal Vs. Modanlal Goyal and Ors. : 2007 (54) RCR (Civil) 556 = 2007 (3) JabLJ 140 (MP) and submitted that a suit for injunction against co-parcener is not maintainable during lifetime of father. He [2025:RJ-JP:15175] (3 of 7) [CR-43/2021] further placed reliance upon judgment in case of Mahendra Kumar Vs. Mohammad Salim and Ors. : 2014 WLC (Raj.) (UC) 504 and submitted that under Section 8 of the Hindu Succession Act, 1956 (for short ‘the Act of 1956’) son’s son is excluded but son of pre-deceased son is included and plaintiff has no right in such a condition. He further referred judgment in case of K. Madhava Raja Nayak Vs. K. Sridhara Nayak : 2010(1) HLR81 (Karnataka) and submitted that ancestral property includes co-parcenery property and acquisition made by co- parceners with help of ancestral property. He further submitted that even in case of Vasant Ramchandra alias Chander Yelvande and others Vs. Gurudas Vasantarao Yelvande and Ors.: 2018(3) AIR 9 Bom. R 730 and submitted that a suit for partition of joint family property during lifetime of father cannot be filed as right accrued by succession and not by birth. 4. None present on behalf of respondent-plaintiff though a power was filed on behalf of respondent after service of notice. 5. Heard learned counsel for the petitioners and perused the material placed on record. And perused the judgments as referred herein. 6. The facts of the case in brief are that respondent plaintiff has filed a civil suit for partition and injunction stating that suit property was purchased by his grandfather Balwant Singh Rai and same was self-acquired property of Balwant Singh Rai. The plaintiff has further made an averment that his biological father Harshad Bhatt is habitually drunkard person and the mother of the plaintiff got divorced during early period of marriage but plaintiff [2025:RJ-JP:15175] (4 of 7) [CR-43/2021] was adopted by defendant No.1 on assurance that the plaintiff will acquire equal rights with others. The plaintiff has further made an averment that the grandfather of plaintiff was expired on 14.09.2009 and after his death the daughters of Balwant Rai and biological father of plaintiff had executed relinquishment deed about their share in property in favour of defendant No.1. The plaintiff has further alleged that by taking advantage of drunkard condition of his father, the defendant No.1 has also acquired 1/6 share of his father. The plaintiff on basis of right accrued to him has filed a suit for partition and injunction for claim in the property left by his grandfather as co-parcener. 7. The petitioners-defendants have filed application under Order 7 Rule 11 of CPC primarily on ground of cause of action, lack of possession, barred by law and insufficient court fee. 8. The trial court after considering the grounds has dismissed the application. 9. The provisions of Order 7 Rule 11 of CPC were considered by Hon’ble Supreme Court in case of Azhar Hussain Vs. Rajiv Gandhi : 1986 SCC (supp) 315, and held that the whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to waste the judicial time of the Court. 10. In cases of Sopan Sukhdeo Sable & Ors vs Assistant Charity Commissioner & Ors : 2004(3) SCC 137 and Dahiben vs Arvindbhai Kalyanji Bhanusali (Gajra)(D) Thr LRs & Ors. : (2020) SCC OnLine SC 563, it was held that the remedy under Order 7 Rule 11 of CPC is an independent and special [2025:RJ-JP:15175] (5 of 7) [CR-43/2021] remedy wherein the court is empowered to summarily dismiss the suit at the threshold without proceeding to record evidence and conduct trial. In case of Dahiben vs Arvindbhai Kalyanji Bhanusali (Gajra)(D) Thr LRs & Ors. (supra), it was held that while considering the application only meaningful reading of plaint is required and the court have to consider averments made in plaint and the documents submitted alongwith plaint. 11. In case of Liverpool & London S.P. & I Asson. Ltd vs M.V. Sea Success I & Anr in Appeal (civil) 5665 of 2002, Hon’ble Supreme Court has laid down a test that if averments made in the plaint are taken to be true and correct in their entirety whether a decree can be passed. 12. Here in this case, the plaintiff has filed a civil suit for partition and injunction before learned trial court against his father and uncle to claim a separate share in the property left by his grandfather. It is an admitted fact that father of plaintiff is alive and he himself filed an application along with defendant No.1 to reject the suit. 13. The residential address of plaintiff is of Malviya Nagar, Jaipur and further the plaintiff has made an averment that his mother has got divorced during early years of marriage. It is also admitted that the property in question was relinquished by father of plaintiff and sisters of defendants in favour of the defendant No.1. The averments of plaintiff also indicate that registered relinquishment deeds were executed by sisters of defendants and defendant No.2 on 12.03.2019, 23.05.2019/24.05.2019, 13.05.2019 and 26.02.2019. [2025:RJ-JP:15175] (6 of 7) [CR-43/2021] 14. A co-ordinate Bench of this Court in case of Mahendra Kumar Vs. Mohammad Salim and Ors. (supra) have considered Section 8 of Hindu Succession Act and held that the provision excludes son’s of son but includes son of a pre-deceased son. In a property owned by grandfather of plaintiff, the plaintiff has no right in the property. The judgment of Hon’ble Supreme Court in case of Commissioner, Wealth Tax Kanpur Vs. Chander Sen : (1986) 3 SCC 567, fortify the contentions of learned counsel for petitioners. 15. In case of Vasant Ramchandra alias Chander Yelvande and others Vs. Gurudas Vasantarao Yelvande and Ors. (supra), a Co-ordinate Bench of Bombay High Court while considering application under Order 7 Rule 11 (d) of CPC with regard to Hindu Law has observed that in a suit for partition filed by children from second wife is not maintainable as their right accrued by succession and not by birth. It was observed that during the lifetime of their parents, children cannot claim their share by filing a suit for partition of joint family property. 16. In case of Vijay Goyal Vs. Modanlal Goyal and Ors. (supra), a Division Bench of Madhya Pradesh High Court while placing reliance upon judgment in case of Commissioner, Wealth Tax (supra) and Yudhishter vs Ashok Kumar : AIR 1987 SC 558 has held that a suit for injunction against a co- parcener is not maintainable during lifetime of his father as plaintiff has no right in the property. 17. Having considered the legal position as referred hereinabove, it is clear that the plaintiff has filed a suit against his father, who is [2025:RJ-JP:15175] (7 of 7) [CR-43/2021] alive, for partition and injunction. The Section 8 of the Act of 1956 provides for general rules of succession in case a Hindu male died intestate, the order or succession clearly indicate that firstly the property will devolved upon surviving sons(s)/daughter(s), widow and mother, if any of son or daughter is not alive then only son(s) and daughter(s) of pre-deceased son or daughter are eligible for succession. 18. Here in this case, a bare perusal of plaint clearly indicate that the plaintiff has no right to claim a partition in a property left by his grand father till his father is alive. In such eventuality, a suit is not maintainable and liable to be dismissed under Order VII Rule 11(a) and (d) of CPC. The trial Court has committed serious error while dismissing the application under Order VII Rule 11 CPC without examining the legal position. 19. In view of discussion made hereinabove, the instant revision petition is hereby allowed and the impugned order dated 16.02.2021 in civil suit No.830/2020 is set aside. As a result, an application under Order VII Rule 11 of CPC is allowed and the civil suit preferred by the respondent plaintiff is hereby rejected. 20. Misc. application(s), if any, stands disposed of. 21. No order as to costs. (ASHOK KUMAR JAIN),J MR/115