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Non-reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.11136 OF 2013

John Kennedy & Another … Petitioners

Versus

Ranjana & Others … Respondents

JUDGMENT

Chelameswar, J.

1. The instant special leave petition is filed by two unsuccessful  

petitioners before the High Court of Madras in CRP (PD) No.3342  

of  2012  aggrieved  by  a  final  order  dated  15.11.2012  passed  

therein.

2. The  petitioners  herein  are  defendant  nos.2  and  3  

respectively  in  Original  Suit  No.300 of  2011 on  the  file  of  the  

Court of District Judge, Coimbatore.  The said suit was filed by the  

first respondent herein.   She is the daughter of 2nd respondent  

herein.  The suit was filed with the prayer as follows:

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“a) for partitioning of the properties more fully described  in the schedule hereunder and allot ½ share to the  plaintiff.

b) directing the defendants to pay plaintiff the cost;

c) granting to the plaintiff such other and further reliefs  as this Hon’ble Court may deem fit and proper in the  circumstances of the case and render justice.”

Such a prayer is based upon the pleading that the suit scheduled  

property  originally  belonged  to  one  Shri  S.  Somanathan,  the  

grandfather  of  the  plaintiff  who  according  to  the  plaint  died  

intestate on 16.08.1981.  The relevant portion of the plaint reads  

as follows:

“The suit properties more fully described hereunder in the  schedule  belongs  to  Late  Somanathan  vide  document  bearing Registration No.1072/1972 dated 20.03.1972.  He  died intestate on 16.08.1981.  On his death, the properties  devolve upon his  legal  heirs  including the 1st defendant.  Subsequently,  the  properties  were  partitioned  to  metes  and bounds  between the legal  heirs  vide  Partition  Deed  bearing  Registration  No.2435/1982,  dated  05.06.1982  in  the Office  of  the District  Registrar,  Coimbatore.   The 1st  defendant being one of the son of Late Somanathan the  Schedule hereunder.”

3. According  to  the  plaintiff,  the  1st petitioner  herein  is  the  

“erstwhile power of attorney” of the father of the plaintiff.  The  

other defendants no.3 to 8 are the “alleged purchasers of a part  

of  the  suit  property  from  the  1st defendant  through  the  2nd  

defendant”.  It is alleged in the plaint that the plaintiff and her  

father constituted a Hindu Undivided Family and the suit property  

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is  ancestral  property  in  the  hands  of  the  1st defendant.   The  

relevant portion of the plaint reads as follows:

“The suit property is an ancestral property in the hands of  the 1st defendant. The 1st defendant being the Kartha of the  Hindu Undivided Family was looking after the same.  He is  having  only  the  right  to  manage  the  properties.   The  properties mentioned in the schedule were enjoyed by the  plaintiff and the 1st defendant jointly.  The plaintiff and the  1st defendant are the co-owners in the suit property.  There  is no partition between the plaintiff and is not having any  right  to  alienate  the  same  without  the  consent  and  concurrence  of  the  plaintiff.   The  1st defendant  and the  plaintiff  are  having  ½  undivided  share  each  in  the  suit  property,  being  the  coparceners  of  the  Hindu  Undivided  Family.”

4. In  the  background  of  the  abovementioned  pleading,  the  

plaintiff made a further allegation that -  

“Upon enquiry, the plaintiff came to know that the sale of a  part  of  the  suit  property  to  the  defendants  3  to  8  are  collusive transactions without any consideration.  The price  quoted in the sale deeds are imaginary and very low.  The  market value of the property is much more than what is  mentioned  as  price  in  the  sale  deeds.   The  3rd to  8th  defendants  are  not  bonafide  purchasers  for  good  consideration.  The alleged sale transactions are fraudulent  and  designed  to  defeat  the  right  of  the  plaintiff.   The  alleged  transactions  were  neither  in  good  faith  nor  for  valuable consideration.  All the above said sale deeds will  not bind the plaintiff in any manner.  Hence the plaintiff is  ignoring the same.”

5. Having made such an allegation, the plaintiff never gave any  

description or any details of the sale transaction/s entered into  

between the 1st petitioner and the other alleged purchasers of the  

part  of  the  suit  scheduled  property  through  the  2nd petitioner  

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herein.   More interestingly no relief is sought in the suit either  

against the 1st petitioner herein or the other defendants who are  

allegedly  the  vendees  of  some  part  of  the  suit  scheduled  

property.

6. In  the background of  such a plaint,  the petitioners herein  

filed I.A. No.1097 of 2011 praying that the plaint be rejected on  

the ground that the suit is a vexatious suit.  By an order dated  

19.06.2002, the trial court dismissed the said application.  

7. Aggrieved by the same,  the petitioners herein carried the  

matter  by  way of  a  revision  to  the  High  Court  unsuccessfully.  

Hence, this SLP.

8. It  appears  from  the  impugned  judgment  that  the  debate  

before the High Court was – whether the suit scheduled property  

is the self acquired property of the father of the plaintiff or the  

property ‘belong to the coparcenery’ between the plaintiff and her  

father.   

9. The High Court on the basis of such a vague pleading in the  

plaint,  even  without  a  written  statement  chose  to  declare  as  

follows:

“Therefore,  the  property  in  the  hands  of  1st defendant  takes  the  character  of  ancestral  property  and  after  the  

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Tamil Nadu Amendment Act, 1989 to the Hindu Succession  Act,  1956,  unmarried daughter also became coparceners  and  they  are  entitled  to  claim a  share  in  the  ancestral  property along with son.”  

10. Even before this Court, it was argued by the petitioners that  

the  suit  scheduled  property  is  to  be  treated  as  self  acquired  

property of the father of the plaintiff and not ancestral property  

and, therefore, the plaint is required to be rejected.

11. We  refrain  from  making  any  further  comment  as  any  

comment at this stage by this Court will have some impact on the  

rights and obligations of some parties to the suit or the other.

12. We are of the opinion that the IA No.1097 of 2011 is wholly  

misconceived.   Whether the suit scheduled property is ancestral  

property of the plaintiff’s father or self acquired property depends  

upon  various  factors.   The  law  in  this  regard  is  well  settled.  

Whether the plaintiff is entitled for a right of partition in the suit  

scheduled property by virtue of the amendment carried to the  

Hindu  Succession  Act  by  the  State  of  Tamil  Nadu  in  1989,  or  

subsequently by the Parliament, are matters to be decided after  

the  pleadings  are  completed  and  evidence  adduced.   In  the  

circumstances, though we are of the opinion that I.A. No.1097 of  

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2011 is required to be dismissed, the finding recorded by the High  

Court that the suit scheduled property is ancestral property of the  

father of the plaintiff and, therefore, the plaintiff is entitled for a  

share is  uncalled for  at  this  stage and we set  aside the same  

leaving  it  open  for  the  trial  court  to  examine  these  questions  

during the course of trial uninfluenced by any observation made  

by the High Court  in  the impugned order.   The Special  Leave  

Petition is disposed of accordingly.  No order as to costs.

………….…………………..J.                                                                                   (J. Chelameswar)

………….…………………..J.                                                                 (Pinaki Chandra Ghose) New Delhi. November 12, 2014

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