Jammu & Kashmir High Court – Srinagar Bench
Rajiv Krishan Nanda vs Praveena Hoon & Ors on 22 August, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 01.08.2025
Pronounced on: 22.08.2025
Case FAO No. 8/2024
No.:- c/w
CR No. 9/2024
Rajiv Krishan Nanda
.....Appellant
Through: Mr. Jayant Bhushan, Sr. Advocate with
Mr. Mujeeb Fazili, Advocate.
Appellant is present in person.
Vs
Praveena Hoon & ors.
..... Respondents
Through: Mr. Abhik Chimney, Advocate with
Mr. Sheikh Omar Farooq, Advocate for
R-1.
Mr. Mubashir Mukhtar, Advocate for
R-2 & 3.
Coram: HON‟BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGEMENT
1. Through the medium of this common judgment, the revision
petition filed by the petitioner/defendant No. 1 against order
dated 15.09.2023 passed by the learned 4th Additional District
Judge, Srinagar whereby application of the petitioner under
Order VII Rule 11 of the Code of Civil Procedure has been
2 FAO No. 8/2024 & CR No. 9/2024
dismissed and the miscellaneous appeal filed by the
appellant/defendant No. 1 against order dated 15.09.2023
passed by the learned 4th Additional District Judge, Srinagar
whereby an application under Order XXXIX Rules 1 and 2 of the
Code of Civil Procedure filed by the respondent No. 1/plaintiff
has been allowed and an interim injunction has been passed
against the appellant/defendant No. 1, are proposed to be
disposed of.
2. It appears that a civil suit for partition, declaration and
permanent injunction came to be filed by the respondent No. 1
(hereinafter to be referred to as „plaintiff‟) before the learned 4th
Additional District Judge, Srinagar (hereinafter to be referred to
as „trial court‟). Appellant/petitioner (hereafter to be referred to
as „defendant No. 1‟), and Smt. Sita Nanda-respondent No. 2
along with Jayanti Khanduri-respondent No. 3 came to be
impleaded as defendants in the said suit.
3. In the plaint, it has been averred by the plaintiff that she along
with the defendants are legal heirs of late Sh. J.B. Nanda. While
the plaintiff, defendant Nos. 2 & 3 are the daughters, defendant
No. 1 is the son of late Sh. J.B. Nanda and late Mrs. Krishna
Nanda. It has been pleaded that late Sh. J.B. Nanda,
predecessor-in-interest of the parties, died on 02.12.2001 and
during his life time, he executed two Wills, one dated 16.10.1989
3 FAO No. 8/2024 & CR No. 9/2024
and the other dated 25.07.2001 whereby he bequeathed his
ancestral as well as self-acquired properties amongst the parties
to the suit.
4. It has been submitted that on 16.05.2022, the plaintiff and
defendant No. 3 applied for mutation of the property measuring
3 kanals 14 marlas under survey No. 373/87 along with house
constructed thereon called ‘Satwant Villa’ and ‘Willow Cottage’
situated at Sheopora, Ram Munshi Bagh, Srinagar. On
19.05.2022, Tehsildar, Srinagar attested mutation vide mutation
No. 2049 in respect of the aforesaid property in equal
proportions in favour of the plaintiff and the defendants.
5. An appeal came to be filed by defendants No. 1 and 2 against
the aforesaid mutation order before Deputy Commissioner
(Collector), Srinagar. It was contended by the aforesaid
defendants that mutation of the properties should be carried
out in terms of the Will dated 16.10.1989 and that mutation in
respect of said property should be attested only in the name of
defendant No. 1.
6. It has been pleaded that on 28.10.2022, the District Collector,
Srinagar, without returning any findings on the merits of the
case, remanded the case to the Tehsildar concerned for de-
novo enquiry and for passing fresh orders in view of two Wills
dated 16.10.1989 and 25.07.2001. It has also been pleaded
4 FAO No. 8/2024 & CR No. 9/2024
that Will dated 25.07.2001 has to be considered as the last
and final testament of late Sh. J.B. Nanda, but the original of
the said Will has been destroyed by the defendant No.1, who
refuses to accept the existence of the said Will. It has been
pleaded that the defendant No. 1 is insisting that the property,
immoveable and moveable assets of late Sh. JB Nanda, should
be devolve upon the parties as per the terms of Will dated
16.10.1989.
7. It has been further pleaded that in the interest of family peace,
harmony and tranquility, the plaintiff is willing to partition the
estate in terms of Will dated 16.10.1989 as the last and final
testament of late Sh. JB Nanda, according to which, the
plaintiff is entitled to 1/4th share in the estate upon its
partition. It has been contended in the plaint that defendant
No. 1 has only been designated as ‘Karta’ of the Hindu
Undivided Family (hereinafter to be referred to as „HUF‟)
property and, as such, he is only a manager of the HUF
property and not the owner of whole of the HUF property.
8. It has been further contended that in view of the amendment
to Section 6 of the Hindu Succession Act, 1956 in the year
2005 and the law laid down by the Supreme Court in ‘Vineeta
Sharma Vs. Rakesh Sharma & Ors‟, 2020 (9) SCC 1‟, the
plaintiff, being the coparcener, has a right to seek partition of
5 FAO No. 8/2024 & CR No. 9/2024
the suit property. In the plaint, it has been further pleaded
that the plaintiff has incurred expenses on construction of
washroom in the suit property and she has also incurred
expenses on purchase of new furniture, which was brought by
her in the estate.
9. It has been also pleaded in the plaint that on 27.09.2022, the
plaintiff along with her daughter were forced to leave the said
house i.e., Satwant Villa by defendants No. 1 and 2, who
locked the main gate and rooms. According to the plaintiff,
she filed a complaint with Police Station, Ram Munshi Bagh,
Srinagar. Thereafter she also filed an application under
Section 156(3) of the Code of Criminal Procedure before the
learned Chief Judicial Magistrate, Srinagar seeking a direction
upon the SHO concerned for registration of the case. It has
been pleaded that defendants No. 1 and 2 are attempting to
grab the whole of the estate along with the land appurtenant
thereto by misusing the office of ‘Karta’.
10. On the basis of the aforesaid pleadings, the plaintiff has
sought a decree of partition of the property called ‘Satwant
Villa’ situated at Ram Munshi Bagh, Srinagar along with the
land appurtenant thereto and ‘Willow Cottage’. A declaration
that plaintiff is owner of 1/4th specific share of the aforesaid
property along with land appurtenant thereto has also been
6 FAO No. 8/2024 & CR No. 9/2024
sought. Besides this, the plaintiff has sought a permanent
injunction against the defendants, restraining them from
selling, transferring, alienating or creating third party interest
in the suit property.
11. It seems that defendant No. 1 filed an application under Order
VII Rule 11 of the Code of Civil Procedure before the trial court
in which it was pleaded that no cause of action has arisen in
favour of the plaintiff in terms of Will dated 16.10.1989, which
is an undisputed document. It was also pleaded that
defendant No. 1 has become owner of the suit property after
the demise of testator late Sh. J.B. Nanda on 02.12.2001. It
has been contended that because late Sh. J.B. Nanda died
before 20.12.2004, the crucial date for giving effect to Hindu
Succession (Amendment) Act of 2005 whereby Section 6 of the
Hindu Succession Act, 1956 was amended, therefore, in terms
of the legal position laid down by the Supreme Court in
Vineeta Sharma‟s case (supra), the plaintiff never became a
coparcener inasmuch as the testamentary disposition had
already taken place before 20.12.2004 in accordance with the
Will dated 16.10.1989 left by late Sh. J.B. Nanda. It has been
submitted that not only is the suit barred by limitation but
even as per the legal position laid down by the Supreme Court
in Vineeta Sharma‟s case (supra), a decree of partition in
7 FAO No. 8/2024 & CR No. 9/2024
respect of the suit property, which has already devolved upon
defendant No. 1 in terms of the Will dated 16.10.1989, cannot
be passed in favour of the plaintiff.
12. It has also been contended that in view of Section 139 of J&K
Land Revenue Act, 1996, jurisdiction of the civil court to
entertain the suit for partition in respect of the subject matter
of the suit is barred. It has been further contended that
because plaintiff has not sought relief of possession, which is a
consequential relief, as such, the suit is not maintainable in
view of the provisions contained in Section 34 of the Specific
Relief Act, 1963.
13. It appears that defendant No. 1 has also filed his written
statement before the trial court. The averments and
contentions made in the written statement shall be gone into
and referred to in case it is found that the contentions of
defendant No. 1 regarding his prayer for rejection of the plaint
are not tenable. In case, it is found that the plaint is liable to
be rejected in view of the contentions raised by defendant No.
1 in his application under Order VII Rule 11 of Code of the
Civil Procedure, the requirement of analyzing the averments
made in the written statement filed by defendant No. 1 may
not arise. Therefore, first of all, it would be appropriate to
8 FAO No. 8/2024 & CR No. 9/2024
determine as to whether the contention of defendant No. 1 that
the plaint does not disclose any cause of action is tenable.
14. The learned trial court while dealing with the aforesaid
contention of defendant No. 1 has, in its impugned judgment
dated 15.09.2023, observed that the plaintiff has, in para-(25)
of the plaint, clearly disclosed the cause of action. It has been
further observed that because an issue in this regard has been
framed by the court, therefore, the same shall be adjudicated
upon at the appropriate stage. According to the learned trial
court since the averments made in the plaint disclose cause of
action as the same stands specifically mentioned in the plaint,
so the ground urged by defendant No. 1 is without any merit.
15. Defendant No. 1 in his revision petition while challenging the
impugned order of the trial court has contended that the
learned trial court has failed to appreciate that defendant No.1
had become owner of the suit property as he was the only
coparcener left behind after the demise of late Sh. J.B Nanda
on 02.12.2001. It has been contended that the learned trial
court has failed to take note of the fact that late Sh. J.B Nanda
had died before 20.12.2004, the crucial date on which Hindu
Succession (Amendment) Act of 2005, is to be given effect,
none of the daughters was a coparcener and the testamentary
disposition of the property left behind by predecessor-in-
9 FAO No. 8/2024 & CR No. 9/2024
interest of the parties had already taken place on 02.12.2001.
It has been further contended that the plaintiff was admittedly
ousted from the possession of the suit property, as such,
without claiming the relief of possession, suit was not
maintainable but this aspect has not been adverted to by the
learned trial court. It has also been contended that the learned
trial court has failed to appreciate and understand the true
nature of the Will dated 16.10.1989, which is an admitted
document.
16. I have heard learned Senior counsel appearing for defendant
No. 1 (petitioner/appellant herein) and learned counsel
appearing for the plaintiff (respondent No. 1 herein). I have
also gone through the impugned order passed by the learned
trial court, the grounds of challenge and the record.
17. According to defendant No. 1, the plaint does not disclose any
cause of action as the averments made therein even if taken to
be correct at their face value, the relief sought by the plaintiff
in the suit cannot be granted in her favour.
18. It is a settled law that a plaint can be rejected in terms of
Order VII Rule 11(a) of Civil Procedure Code by the court if it
does not disclose cause of action. Without a cause of action a
civil suit cannot be entertained. A cause of action means every
10 FAO No. 8/2024 & CR No. 9/2024
fact which, if traversed, it would be necessary for the plaintiff
to prove in order to support his right to judgment of the court.
In order to ascertain whether the averments made in the plaint
disclose a cause of action, a court has only to consider the
averments made in the plaint and not the contentions raised
in the written statement or in any other ancillary proceedings.
However, when a plaintiff also relies upon document(s)
annexed to the plaint or filed alongwith the plaint, having
regard to provision contained in Order VII Rule 14 of the Code
of Civil Procedure, those documents are required to be taken
into consideration for the purpose of disposal of an application
under Order VII Rule 11(a) of the Code of Civil Procedure. If it
is shown from the averments made in the plaint and the
documents relied upon by the plaintiff, which are to be taken
as true at their face value, that the plaintiff would be entitled
to a decree as prayed in the suit, the plea of a defendant for
rejection of the plaint has to be turned down.
19. The Supreme Court has, in the case of “Vijay Pratap Singh &
Anr Vs Dukh Haran Nath Singh“, AIR 1962 SC 941 while
discussing the scope of enquiry which a Civil Court has to
undertake while determining whether or not the plaint
discloses cause of action, held as under:
11 FAO No. 8/2024 & CR No. 9/2024
“By the express terms of Rule 5 clause (d), the court is
concerned the ascertain whether the allegations made in the
petition show a cause of action. The court has not to see
whether the claim made by the petitioner is likely to succeed:
it has merely to satisfy itself that the allegations made in the
petition, if accepted as true, would entitle the petitioner to the
relief he claims. If accepting those allegations as true no case
is made out for granting relief no cause of action would be
shown and the petition must be rejected. But in ascertaining
whether the petition shows a cause of action the court does
not enter upon a trial of the issues affecting the merits of the
claim made by the petitioner. It cannot take into
consideration the defences which the defendant may raise
upon the merits; nor is the court competent to make an
elaborate enquiry into doubtful or complicated questions of
law or fact. If the allegations in the petition, prima facie,
show a cause of action, the court cannot embark upon an
enquiry whether the allegations are true in fact, or whether
the petitioner will succeed in the claims made by him.”
20. Again the Supreme Court, in the case of “Liverpool & London
S.P & 1 Association Ltd Vs. M.V. Sea Success I & Anr“,
(2004) 9 SCC 512, explained that whether a plaint discloses a
cause of action or not is essentially a question of fact and it
must be found out from reading the plaint itself. The Supreme
Court further held that for the said purpose the averments
made in the plaint in their entirety must be held to be correct.
The Court went on to lay down that the test is as to whether if
the averments made in the plaint are taken to be correct in its
entirety, a decree would be passed.
12 FAO No. 8/2024 & CR No. 9/2024
21. From the foregoing analysis of the law on the subject, it is
manifest that while dealing with an application under Order
VII Rule 11 (a) of the Code of Civil Procedure, courts have to
determine whether the plaint discloses a cause of action by
carefully scrutinizing the averments made in the plaint
together with the documents relied upon by the plaintiffs. The
court has to disregard the averments made in the written
statement.
22. With the aforesaid legal position in mind, let us now analyze
the averments made by the plaintiff in the plaint. It is case of
the plaintiff that she being daughter of late Sh. JB Nanda, who
had passed away in the year 2001, is entitled to 1/4th share of
the property called ‘Satwant Villa’ and ‘Willow Cottage’ along
with the land appurtenant thereto situated at Sheopora, Ram
Munshi Bagh, Srinagar. Although in the plaint, it is pleaded
that late Sh. J.B. Nanda had executed two Wills, one in the year
1989 and the other in the year 2001, yet the plaintiff has, in
para (9) of the plaint, clearly stated that she is willing to have
partition of the suit property in terms of Will dated 16.10.1989
by treating it as the last and final testament of late Mr. J.B.
Nanda. The plaintiff is relying upon Will dated 16.10.1989 for
the purpose of seeking relief of declaration and partition to the
extent of 1/4th of the share in the suit property. The document
13 FAO No. 8/2024 & CR No. 9/2024
Will dated 16.10.1989, which is an admitted document is,
therefore, crucial to the decision of the issue as to whether or not
the plaintiff has a cause of action in her favour.
23. The contention that has been raised by defendant No. 1 is that
as per the legal position prevailing prior to 20.12.2004, the date
when effect to amendment of Section 6 of the Hindu Succession
Act, 1956 was given by virtue of Act 39 of 2005, only the male
descendants were entitled to become coparceners and thus,
immediately prior to the death of late Sh. J.B. Nanda in the year
2001, only late Sh. J.B. Nanda and the defendant No. 1 were the
coparceners in respect of the suit property along with other
ancestral properties. After his death on 02.12.2001, defendant
No. 1 became the sole coparcener and by virtue of Will dated
16.10.1989, disposition of the suit property had taken place in
his favour. It has been contended by defendant No. 1 that in
terms of proviso to sub-section (1) of Section 6 of the Hindu
Succession Act, as amended by Act 39 of 2005, the said
disposition in favour of defendant No. 1 is saved and, therefore,
the plaintiff cannot claim partition of the suit property.
24. The contention of the plaintiff, on the other hand, is that even
after the death of late Sh. J.B. Nanda, the suit property
continued to be a joint property of the HUF of which a defendant
No. 1 and unmarried sister Smt. Sita Nanda (defendant No. 2)
14 FAO No. 8/2024 & CR No. 9/2024
were the members and, as such, it cannot be stated that
defendant No. 1 in his capacity as the sole coparcener after the
death of late Sh J.B Nanda had become the sole owner of the suit
property. It has been contended that as per Will dated
16.10.1989 defendant No. 1 was appointed only as ‘Karta’ and
his status was only of a Manager of the suit property, which was
never disposed of by the testator in his favour.
25. Before determining the merits of the rival contentions raised by
learned counsel for the parties, it would be apt to notice the legal
position as regards the effect and interpretation of the amended
provisions contained in Section 6 of the Hindu Succession Act,
1956. The same reads as under :-
6. Devolution of interest in coparcenary property. —
(1)On and from the commencement of the Hindu Succession
(Amendment) Act, 2005, in a Joint Hindu family governed by
the Mitakshara law, the daughter of a coparcener shall,–
(a)by birth become a coparcener in her own right in the same
manner as the son;
(b)have the same rights in the coparcenary property as she
would have had if she had been a son;
(c)be subject to the same liabilities in respect of the said
coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall
be deemed to include a reference to a daughter of a
coparcener:
15 FAO No. 8/2024 & CR No. 9/2024
Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including
any partition or testamentary disposition of property which
had taken place before the 20th day of December, 2004.
(2)Any property to which a female Hindu becomes entitled by
virtue of sub-section (1) shall be held by her with the
incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other
law for the time being in force in, as property capable of
being disposed of by her by testamentary disposition.
(3)Where a Hindu dies after the commencement of the Hindu
Succession (Amendment) Act, 2005, his interest in the
property of a Joint Hindu family governed by the Mitakshara
law, shall devolve by testamentary or intestate succession,
as the case may be, under this Act and not by survivorship,
and the coparcenary property shall be deemed to have been
divided as if a partition had taken place and,–
(a)the daughter is allotted the same share as is allotted to a
son;
(b)the share of the pre-deceased son or a pre-deceased
daughter, as they would have got had they been alive at the
time of partition, shall be allotted to the surviving child of
such pre-deceased son or of such pre-deceased daughter;
and
(c)the share of the pre-deceased child of a pre-deceased son
or of a pre-deceased daughter, as such child would have got
had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre-
deceased son or a pre-deceased daughter, as the case may
be.
Explanation. –For the purposes of this sub-section, the
interest of a Hindu Mitakshara coparcener shall be deemed
to be the share in the property that would have been allotted
16 FAO No. 8/2024 & CR No. 9/2024
to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was
entitled to claim partition or not.
(4)After the commencement of the Hindu Succession
(Amendment) Act, 2005, no court shall recognise any right to
proceed against a son, grandson or great-grandson for the
recovery of any debt due from his father, grandfather or
great-grandfather solely on the ground of the pious obligation
under the Hindu law, of such son, grandson or great-
grandson to discharge any such debt:
Provided that in the case of any debt contracted before the
commencement of the Hindu Succession (Amendment) Act,
2005, nothing contained in this sub-section shall affect–
(a)the right of any creditor to proceed against the son,
grandson or great-grandson, as the case may be; or
(b)any alienation made in respect of or in satisfaction of, any
such debt, and any such right or alienation shall be
enforceable under the rule of pious obligation in the same
manner and to the same extent as it would have been
enforceable as if the Hindu Succession (Amendment) Act,
2005 had not been enacted.
Explanation. –For the purposes of clause (a), the expression
―son‖, ―grandson‖ or ―great-grandson‖ shall be deemed to
refer to the son, grandson or great-grandson, as the case
may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act,
2005.
(5)Nothing contained in this section shall apply to a partition,
which has been effected before the 20th day of December,
2004.
Explanation. –For the purposes of this section ―partition‖
means any partition made by execution of a deed of partition
17 FAO No. 8/2024 & CR No. 9/2024
duly registered under the Registration Act, 1908 (16 of 1908)
or partition effected by a decree of a court.‖
26. From a perusal of the above provision, it is clear that upon
commencement of the Act 39 of 2005, the daughter of a
coparcener becomes a coparcener in her own right in the same
manner as the son and she is vested with same rights in the
coparcenary property as she would have like a son. It is
significant to note that the daughter becomes a coparcener in
terms of the said provision by birth meaning thereby effect of
the right to become a coparcener in favour of a daughter has
been bestowed upon her from the date of her birth and not
from the date of coming into effect of the said amendment.
27. However, proviso to sub section (1) of Section 6 of the Hindu
Succession Act saves any disposition or alienation including
any partition or the testamentary disposition of property,
which had taken place before 20.12.2004. The explanation to
sub-section (5) quoted above clarifies that the partition for the
purpose of said provision has to be by way of deed of partition
duly registered under the Registration Act or the partition
effected by a decree of court meaning thereby that any other
mode of partition is not recognized in terms of Section 6(5) of
the Hindu Succession Act.
18 FAO No. 8/2024 & CR No. 9/2024
28. The provisions contained in Section 6 of Hindu Succession Act
as amended by Act 39 of 2005 have been explained by the
Supreme Court in the case of „Vineeta Sharma Vs. Rakesh
Sharma and Ors‟, (2020) 9 SCC 1. The Supreme Court has, in
the said case while answering the reference concerning the
interpretation of Section 6 of the Hindu Succession Act as
amended by Hindu Succession (Amendment) Act, 2005, held
as under :-
―129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the
Hindu Succession Act, 1956 confer status of coparcener on
the daughter born before or after amendment in the same
manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier
with effect from 9.9.2005 with savings as provided in Section
6(1) as to the disposition or alienation, partition or
testamentary disposition which had taken place before 20th
day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not
necessary that father coparcener should be living as on
9.9.2005.
(iv) The statutory fiction of partition created by proviso
to Section 6 of the Hindu Succession Act, 1956 as originally
enacted did not bring about the actual partition or disruption
of coparcenary. The fiction was only for the purpose of
ascertaining share of deceased coparcener when he was
survived by a female heir, of Class-I as specified in
the Schedule to the Act of 1956 or male relative of such
female. The provisions of the substituted Section 6 are
19 FAO No. 8/2024 & CR No. 9/2024
required to be given full effect. Notwithstanding that a
preliminary decree has been passed the daughters are to be
given share in coparcenary equal to that of a son in pending
proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section
6(5) of the Act of 1956, a plea of oral partition cannot be
accepted as the statutory recognized mode of partition
effected by a deed of partition duly registered under the
provisions of the Registration Act, 1908 or effected by a
decree of a court. However, in exceptional cases where plea
of oral partition is supported by public documents and
partition is finally evinced in the same manner as if it had
been affected by a decree of a court, it may be accepted. A
plea of partition based on oral evidence alone cannot be
accepted and to be rejected outrightly.‖
29. The ratio laid down by the Supreme Court in the aforesaid
case was explained by the said Court in its later judgment
delivered in the case of „Prasanta Kumar Sahoo and Ors Vs.
Charulata Sahu and Ors‟, (2023) 9 SCC 641. While
discussing the legal position as laid down in Vineeta
Sharma‟s case (supra), the Supreme Court took notice of
paras 11, 12, 13 and 14 of the judgment in the case titled
„Ganduri Koteshwaramma & Anr Vs. Chakiri Yanadi & Anr‟,
(2011) 9 SCC 788. The same are reproduced as under:
―11. The new Section 6 provides for parity of rights in the
coparcenary property among male and female members of a
joint Hindu family on and from 9-9-2005. The legislature has
now conferred substantive right in favour of the daughters.
According to the new Section 6, the daughter of a coparcener
20 FAO No. 8/2024 & CR No. 9/2024becomes a coparcener by birth in her own rights and
liabilities in the same manner as the son. The declaration
in Section 6 that the daughter of the coparcener shall have
same rights and liabilities in the coparcenary property as she
would have been a son is unambiguous and unequivocal.
Thus, on and from 9-9-2005, the daughter is entitled to a
share in the ancestral property and is a coparcener as if she
had been a son.
12. The right accrued to a daughter in the property of a joint
Hindu family governed by the Mitakshara law, by virtue of
the 2005 Amendment Act, is absolute, except in the
circumstances provided in the proviso appended to sub-
section (1) of Section 6. The excepted categories to which
new Section 6 of the 1956 Act is not applicable are two,
namely, (i) where the disposition or alienation including any
partition has taken place before 20-12-2004; and (ii) where
testamentary disposition of property has been made before
20-12-2004. Sub-section (5) of Section 6 leaves no room for
doubt as it provides that this section shall not apply to the
partition which has been effected before 20-12-2004. For the
purposes of new Section 6 it is explained that ―partition‖
means any partition made by execution of a deed of partition
duly registered under the Registration Act, 1908 or partition
effected by a decree of a court. In light of a clear provision
contained in the Explanation appended to sub-section (5)
of Section 6, for determining the non-applicability of the
section, what is relevant is to find out whether the partition
has been effected before 20-12-2004 by deed of partition
duly registered under the Registration Act, 1908 or by a
decree of a court. In the backdrop of the above legal position
with reference to Section 6 brought in the 1956 Act by the
2005 Amendment Act, the question that we have to answer
is as to whether the preliminary decree passed by the trial
court on 19-3-1999 and amended on 27-9-2003 deprives the
21 FAO No. 8/2024 & CR No. 9/2024
appellants of the benefits of the 2005 Amendment Act
although final decree for partition has not yet been passed.
13. The legal position is settled that partition of a joint Hindu
family can be effected by various modes, inter alia, two of
these modes are (one) by a registered instrument of a
partition and (two) by a decree of the court. In the present
case, admittedly, the partition has not been effected before
20- 12-2004 either by a registered instrument of partition or
by a decree of the court. The only stage that has reached in
the suit for partition filed by Respondent 1 is the
determination of shares vide preliminary decree dated 19-3-
1999 which came to be amended on 27-9-2003 and the
receipt of the report of the Commissioner.
14. A preliminary decree determines the rights and interests
of the parties. The suit for partition is not disposed of by
passing of the preliminary decree. It is by a final decree that
the immovable property of joint Hindu family is partitioned by
metes and bounds. After the passing of the
preliminary decree, the suit continues until the final decree is
passed. If in the interregnum i.e. after passing of the
preliminary decree and before the final decree is passed, the
events and supervening circumstances occur necessitating
change in shares, there is no impediment for the court to
amend the preliminary decree or pass another preliminary
decree redetermining the rights and interests of the parties
having regard to the changed situation.‖
30. After noticing the aforesaid legal position, the Supreme court
in Prasanta Kumar Sahoo‟s case (supra), observed as under:
60. Thus, in Ganduri Koteshwaramma (supra) this Court
made the following things explicitly clear:
22 FAO No. 8/2024 & CR No. 9/2024
(60.1) The equal share given to the daughter of a coparcener
governed by Hindu Mitakshara Law along with brothers is
by way of a substantive right;
(60.2) Though the substantive right is created on and from 9-
9-2005, it relates back to the incidence of birth;
(60.3) The substantive right would not be available only if the
coparcenary property is disposed of or alienated including by
any partition or testamentary disposition of property before
20-12-2004 and;
(60.4) If there is disposition of a coparcenary property by any
partition, such partition must be by execution of a Deed of
Partition duly registered under the Registration Act, 1908 or
effected by a decree of the Court.
(60.5) A preliminary decree of partition only determines the
rights and interests of the parties. It is only by a final decree
that the immovable property of joint Hindu family is
partitioned by metes and bounds. After the passing of the
preliminary decree, the suit continues until the final decree is
passed. If in the interregnum i.e. after passing of the
preliminary decree and before the final decree is passed, if
there is any change in law necessitating determination of
shares accordingly then, there would be no impediment for
the Court to amend the preliminary decree or pass another
preliminary decree redetermining the rights and interests of
the parties having regard to the changed situation.
31. From the analysis of foregoing legal position, it is clear that if a
testamentary disposition or partition or any alienation of
coparcenary property has taken place prior to 20.12.2004, the
same is saved and a daughter, who has become coparcener by
23 FAO No. 8/2024 & CR No. 9/2024
virtue of Hindu Succession (Amendment) Act of 2005 cannot
claim partition of property already disposed of, partitioned or
bequeathed by testamentary disposition prior to 20.12.2004.
32. Now coming to the facts of the present case, defendant No. 1
claims that in terms of Will dated 16.10.1989, the suit
property had been bequeathed by late Sh. J.B. Nanda in his
favour and because Sh. J.B. Nanda had died in the year 2001
prior to coming into effect of Hindu Succession (Amendment)
Act, 2005, therefore, the disposition made by him with regard
to the said property in favour of defendant No. 1 is saved and,
thus, the same cannot be subjected to partition. The case of
the plaintiff is that though there is no doubt about the
authenticity of Will dated 16.10.1989, yet by virtue of the said
Will, defendant No. 1 was only made ‘Karta’ of ancestral
property but the suit property was never bequeathed in his
favour.
33. In order to test the merits of the rival contentions, it would be
apt to notice the contents of Will dated 16.10.1989 executed
by late Sh. J.B. Nanda. The same are reproduced as under:
“WILL IN FAVOUR OF WIFE AND CHILDREN
I, J. B. Nanda r/o Shri J. D. Nanda, Chief Engineer, J&K State
(Retd.) R/o Satwant village, Ram Munshi Bagh, Srinagar (Kashmir),
do hereby revoke all my previous wills and codicils, if any, and
declare this will made at Srinagar, Kashmir, on this 16 th Day of
October, 1989, to be my last will.
24 FAO No. 8/2024 & CR No. 9/2024
I have during my lifetime owned the following immovable properties
and assets, party as Karta of Hindu undivided family and partly
with my own efforts, and without association of any ancestral
Estate, required considerable property and I am also possessed of
large assets in the shape of bonds and I am also possessed of
large assets in the shape of bonds. Saving Funds Accounts, fixed
deposits in Banks, Saving Certificates, Units of unit trust of India
etc.AS KARTA OF HINDU UNDIVIDED FAMILY
(A) Main five bed room house known as ―Satwant Villa‖, and a
separate single storeyed garage and store-block, fully furnished
with besides other things, four sofa sets, thirteen large carpets,
show case in the dinning room with exquisite bone china crockery,
glass crockery, glass were, silver ware, parti, kept away and
partly in use, very superior quality of English dinner and tea set
complete etc. And all kinds of household effects. The land
appurtenant to the said bungalow, and the annex which will form
item (5) below is about four Kanals Two Kanals and thirteen
marlas of common road with my brothers and sister.
(B) Two storeyed annexed called ―willow cottage‖ with an
independent entrance.
(C) Seven years National Rural Development Bonds for Rs. 160000/-
No. DH. 2678 dated 24th November, 1982, due to maturity on
24.11.1989.
(D) Current Account SBI Srinagar No. P-2, 11040, in the name of DB
Nanda, Karta Hindu Undivided Family.
(E) Fixed deposit of Rs. 20000 in the State Bank of India Srinagar in
the name of JB Nanda, Karta Hindu Undivided Family, due to
maturity on 07.06.1991. The quarterly interest is credit to the
current account mentioned in item ―D‖ above.
AS INDIVIDUAL
(a) Three Kanal and four marlas of land Laripora Pahalgam, as
detailed below:-
Khewat No. 20 Khasra No. 442-1 Kanal 19 marlas.
Khewat No. 12 (Khasra No. 443) – Kanal 26 marlas
Total – 3 kanals and 4 marlas.
(b) 3 years IDBI Capital Bond for an amount of Rs. 550000/- (Rupees
Five Lakhs Fifty Thousand Only) to CB(H) – JM/00003 dated
9.6.1989 along with seven post dated six monthly cheques for Rs.
24750/-
25 FAO No. 8/2024 & CR No. 9/2024
(c) SAVING FUND ACCOUNTS
(i) S.F. Account No: 10273 in State Bank of India, Srinagar;
(ii) S.F. Account No. 2118/L 9 in J&K Bank Residency Road,
Srinagar;
(iii) S.F. Account No: C-773 State Bank of India, Badami Bagh,
Cantt., Srinagar (Joint Account with my wife Krishna Nanda).
(iv) S.F. Account No. 11377 Grind lays Bank Srinagar (Joint
Account with my wife Krishna Nanda it is primarily my wife’s
Account)
(v) S.F. Account No. 6504 J&K Bank, Sondhi Nagar, Jammu (Tawi).
(vi) S.F. Account No. 2297 in Punjab National Bank, Nizam-ud-din
Branch, New Delhi (Joint Account with my wife Krishna Nanda.
It is primarily my wife’s Account)
(vii) S.F. Account No. 3412 in Punjab National Bank, Maharani
Bagh, New Delhi.
(D) FIXED DEPOSITS IN BANKS
(i) Fixed Deposit of Rs. 30,000/- in State Bank of India, Badami
Bagh Cantt., Srinagar, vide Term Deposit Receipt No. 509374 in
the names of J.S. Nanda and my son Shri Rajiv Krishna Nanda
due for maturity on 2.7.1990.
(ii) Fixed deposit of Rs. 18,000/- in State Bank of India, Badami
Bagh Cantt., Srinagar vide Term Deposit receipt No. 455537 in the
names of J.B. Nanda and Krishna Nanda due for maturity on
1.4.1990. The quarterly interest on this deposit is credited to my
S.F. Account No. C-773 mentioned in item C(iii) above.
(iii) Fixed deposit of Rs. 5,000/- in J&K Bank, Gandh Nagar, Jammu,
vide Deposit receipt No. 058886 is due for maturity on 19.3.1991.
I hope to increase this amount during my lifetime. The quarterly
interest on this deposit is credited to my S.F. Account No. 6504,
J&K Bank, Gandhi Nagar, Jammu, mentioned in item No. c(iv)
above.
(E) SIX YEAR NATIONAL SAVINGS CERTIFICATES – SEVENTH ISSUE
HELD IN SUB POST OFFICE, BATWARA SRINAGAR:
(i) For Rs. 5,000/- (No. 592091) dated 13.11.1984, due for maturity
on 13.11.1990;
(ii) for Rs. 1,000/- (No. 116046) dated 13.11.1984, due for maturity
on 13.11.1990;
(iii) for Rs. 1,000/- (No. 116047) dated 13.11.1984, due for maturity
on 13.11.1990; and
26 FAO No. 8/2024 & CR No. 9/2024
(iv) Twelve certificates of Rs. 500/- each (Nos. 112055 to 112066)
dated 27.3.1989, due for maturity on 27.3.1995.
(F) UNIT TRUST OF INDIA
I hold one thousand units of the Unit Trust of India in the joint
names of J.B. Nanda and Krishna Nanda, Satwant Villa, Ram Munshi
Bagh, Srinagar. Any one or Survivor, bearing No. 48311, 301671 dated
20.07.1982.
WHEREAS, my family i.e. my wife and children comprise of
following members:
(i) Krishna Nanda - Wife
(ii) Parveena Hoon
Wife of Major General H.N. Hoon - Daughter
(iii) Sita Nanda - Daughter (Unmarried)
(iv) Jayant Khanduri
Wife of Major General Rajiv Khanduri – Daughter)
Rajiv Krishan Nanda – Son
THAT WHEREAS, without any pressure, coercion or intimidation I
bequeath, by my this will, the aforesaid immovable and movable
property, in favour of my wife and children mentioned hereinabove,
as under:-
My only son, namely, Shri Rajiv Krishan Nanda will be the Karta of
my Hindu Undivided Family assets, of which I am the Karta at
present.
I further bequeath that in this respect:-
(a) That on maturity of seven years National Rural Development
Bonds for Rs. 1,60,000/- on 24th of November, 1989 – item (A)-(C)
above, Rs. 1,00,000/- should be put in Fixed Deposit to be
credited into Current Account No. P/211040. From this amount,
Rs. 700/- per month should be paid to my wife Krishna Nanda for
her lifetime.
(b) The Willow Cottage, item B, excluding the two servants’ rooms in
the ground floor which have access from the main house, should
be given to my daughter Sita Nanda who is a member of Hindu
Undivided Family, for her personal independent residence only
(not renting) if she is posted in Srinagar or after her retirement
wishes to live in Srinagar, for her lifetime.
(2) I bequeath my own, earned and possessed immovable and
movable property (as individual) as under:
27 FAO No. 8/2024 & CR No. 9/2024
(a) My 3 Kanal and 4 Marlas of land at Pahalgam, combined
with 1 Kanal and 5 Marlas of land belonging to my wife
and contiguous to my land, which she has decided to have
to her daughters, should be distributed among my three
daughters approximately equal share of one Kanal and
Eight Marlas to each with five marlas of my wife’s land in
Khasra No. 444/min and 445/min set side for an
independent road to the plots of my daughters Sita Nanda
and Jayanti Khanduri at the western of the plot, as
follows:-
One Kanal and Fourteen Marlas of land in Khewat No. 20,
Khasra No. 442, and One Kanal Two Marlas of land in
Khewat No. 12, Khasra No. 443, total Two Kanals and
Sixteen Marlas of land on the Northern side of our plot,
should go to my daughters Sita Nanda and Jayanti
Khanduri, approachable by five marlas of independent road
from the public road on the southern side of our plot. They
will divide this plot of Two Kanals and Sixteen Marlas
mortally in a manner acceptable to both. In case of discrete
over it between the two, which is unlikely, my younger
brother Lt. General T.B. Nanda, will be the sole Arbitrator to
decide the dispute between the two, and decision given by
the said Arbitrator shall be full and final, and finding on the
parties. The remaining One Kanal and Eight Marlas of land
as follows:-
Four Marlas from Khasra No. 443
Four Marlas from Khasra No. 444
And
One Kanal from Khasra Nos. 444 and 445 belonging to my
wife, forming a plot of One kanal and Eight Marlas of land
located alongwith the public road on the Southern side, will
go to my eldest daughter, Mrs. Parveena Hoon. I hope to get
these plots properly demarcated during my lifetime.
(b) THREE YEARS IDBI CAPITAL BOND FOR RS. 5,55,000/-
The proceeds of this bond on maturity and the post dated
six monthly cheques, if any uncahsed upto the time of my
death, should go to my wife Krishna Nanda. In case of my
wife’s and my simultaneous death or my wife’s death
preceding mine. Rs. Seventy Five Thousand each should go
to my three daughters and Rs. Three Lakhs and twenty
Five Thousands should go to my son Rajiv Krishna Nanda.
(C) SAVING FUNDS ACCOUNTS
My three Joint Saving Fund Accounts with my wife viz. S.F.
Account No. C-773 State Bank of India, Badami Bagh Cantt.,
Srinagar, S.F. Account No. 11377, Grindlaya Bank Srinagar, and
28 FAO No. 8/2024 & CR No. 9/2024
S.F. Account No. 2297 Punjab National Bank, Nizam-ud-din, New
Delhi, will revert to my wife. The proceeds of the remaining four
accounts should be collected and should be distributed equally
amongst my three daughters and one son.
(d) FIXED DEPOSITS IN BANKS:
(I) Fixed deposit of Rs. 30,000/- in State Bank of India,
Badami Bagh Cantt., Srinagar, in my name and the name
of my son Rajiv Krishna Nanda, will revert to my son.
(II) Fixed deposit of Rs. 18,000/- in State Bank of India,
Badami Bagh Cantt., Srinagar, in my name and the name
of my wife Krishna Nanda, will revert to my wife. In case of
my wife’s and my simultaneous death, or my wife’s death
preceding mine, this should go to my son.
(III) Fixed deposit of Rs. 5,000/- in J&K Bank, Gandhi Nagar,
Jammu, should go to my son Rajiv Krishna Nanda.
(e) SIX YEARS NATIONAL SAVING CERTIFICATES, SEVENTH
ISSUE, HELD IN SUB POST OFFICE, BATWARA,
SRINAGARShould go to my son Rajiv Krishna Nanda.
(f) One thousand units in the Unit Trust of India, held jointly
with my wife, will revert to her. In case of my and my
wife’s simultaneous death, or my wife’s death preceding
mine, these units should be divided equally among my
daughter Sita Nanda and my granddaughter Mallika,
daughter of my daughter Jayanti Khanduri.
I further bequeath that:-
(i) My B.S.A. gun and fishing tackle should go to my son Rajiv
Krishna Nanda along with accessories which go with these and
cartridges, if any.
(ii) My Movie Camera, Projector, Screen and all note reels should go
to my daughter, Sita Nanda.
(iii) Besides, whatever I have desired to be given to my daughters
under this will after my demised. I have already given them the
share to which they would be entitled under Hindu Law after my
death, in the form of movable properties, jewellery, presents and
in the form heirlooms and as such, they have no further claim in
my any movable or immovable property except the one
bequeathed in the will.
However, in case of any legal obstacle in inheriting the immovable
property to my daughters, the same should devolve on my son
and he shall pay in cash, the prevalent market value of the
property to his sisters.
29 FAO No. 8/2024 & CR No. 9/2024
Any servant who has been with us for more than five years
continuously at the time of my death, should be given Rs. 1000/-
(Rupees One Thousand) from Hindu Undivided Family funds.
IN WITNESS WHEREOF, I have hereunto set and subscribed my
hand and signature this 15th of October 1989, at Srinagar.
Sd/-
Testator
(JB Nanda)
WITNESS
Signed by the within named testator as his last will and statement in
our presence, all being present at the same time. Thereafter at his
request and his presence and in the presence of another we subscribed
our respective names.
1. Sd/-
Chief Secretary
Srinagar.
2. Sd/-
(Dr. SR Dhar)
Professor of Medicines Rajbagh, Srinagar.‖
34. From a perusal of the aforequoted Will, it appears that the
testator had, in his possession, two types of properties one,
belonging to Hindu Undivided Family i.e. ancestral property
and the self-acquired property. So far as disposition of self-
acquired property of late Sh. J.B. Nanda is concerned, the
same is mentioned in clause 2 (a) to (f) of the Will.
35. Regarding ancestral properties belonging to the HUF, the
testator late Sh. J.P. Nanda has made disposition with regard
to National Rural Development Bonds by providing that the
same shall be put in fixed deposit and be credited to current
account as mentioned in the list of HUF assets. It has been
further provided that Willow Cottage, which is a part of the
30 FAO No. 8/2024 & CR No. 9/2024
ancestral estate, would be given to daughter
Smt. Sita Nanda for her life time. There is no mention about
the fate of suit property i.e. Satwant Villa, which has been
specifically mentioned as part of the property of the HUF at
Clause (A) of the Will. The only thing that has been mentioned
is that defendant No. 1 shall be ‘Karta’ in respect of HUF
assets.
36. At first blush, it appears that the testator has not made any
disposition with regard to the suit property but when we
carefully analyze the entire contents of the Will particularly its
concluding portion, it comes to the fore that the testator has
specifically mentioned that he has already given his daughters
the share to which they would be entitled under Hindu Law
after his death in the form of moveable properties, Jewellery,
presents, and in the form of heirlooms and as such, they have
no further claim in his moveable or immoveable property
except the ones bequeathed in the Will. Thus, the testator has
made his intention clear that whatever he had to give to his
daughters, he has already given to them by virtue of the Will in
question and besides this he has also given them immoveable
properties in the form of jewellery, presents and heirlooms.
The testator has made it clear that the daughters will not have
any claim over any other moveable or immoveable property left
31 FAO No. 8/2024 & CR No. 9/2024
behind him. This inference is supported by other surrounding
circumstances which are deducible from the contents of the
Will. The same are being noticed hereinafter.
37. The intention of the testator that he wanted to ensure that his
daughters should get proper share in the assets can be
inferred from the fact that he has provided in the Will that in
case any of the immoveable property, which he has given to
his daughters by virtue of the said Will, would not get devolved
upon his daughters because of legal obstacles, the same would
devolve upon his son who will have to pay the market value
thereof to his sisters. This, it appears, was done by the
testator keeping in view the legal position in force at the
relevant time according to which a daughter marrying a non-
state subject was not eligible to retain immoveable property in
erstwhile State of J&K. By making this provision in the Will,
the testator has ensured that his daughters are not deprived of
their shares in the property under any circumstances.
38. From the above, it is clear that the testator has, by virtue of
the Will, given properties, moveable and immoveable, to all his
daughters and has also given life interest in respect of Willow
Cottage to his unmarried daughter Smt. Sita Nanda but he
has not specifically earmarked any property in favour of his
son Rajiv Nanda. When this background situation is read in
32 FAO No. 8/2024 & CR No. 9/2024
conjunction with the concluding part of the Will whereby the
testator has stated that his daughters will not have any right
in any other movable or immoveable property, one comes to
the irresistible conclusion that the testator intended to
bequeath the suit property in favour of his son-(defendant)
No.1 although he has not specifically stated so in the Will.
39. Section 88 of the Indian Succession Act, 1925 provides that
where two clauses or gifts in a Will are irreconcilable so that
they cannot possibly stand together, the last shall prevail. In
the present case, at the initial stage of the Will, the testator
late Sh. J.B. Nanda has appointed his son-defendnant No. 1
as a ‘Karta’ of the HUF assets but towards the conclusion of
the Will, he has made it clear that except the disposition made
by him by virtue of the said Will in favour of his daughters,
they will not get any other share in the moveable or
immoveable property left behind by the testator. Thus, the
last clause of the Will has to prevail meaning thereby it has to
be inferred that the testator intended that all other properties
left behind by the testator, which will include the suit
property, have to go to defendant No. 1 who happens to be son
of late Sh. J.B. Nanda.
40. It is a settled law that while constructing a document of Will, a
Court has to place itself in the arm chair of the testator and it
33 FAO No. 8/2024 & CR No. 9/2024
should be an endeavour of the court to give effect to the
intention of the testator. Therefore, a Will has to be read in its
entirety in the background facts and circumstances of the
case. When the contents of the Will dated 16.10.1989 are
considered in the background of the facts that the testator had
given shares to all his three daughters out of the property left
behind by him without specifically making any provision in
respect of his son (defendant No. 1) coupled with the specific
declaration in the Will that the daughters would not get
anything except what has been given to them in the Will, it can
safely be construed that the testator late Sh. J.B. Nanda
intended to bequeath the suit property in favour of defendant
No. 1. This fact gets further strengthened from the
circumstance that none of the other sisters of defendant No. 1
has questioned this position excepting the plaintiff who has
woken up from deep slumber after more than twenty years of
death of the testator and filed the suit, which is subject matter
of the present proceedings. This clearly shows that the parties
to the suit had accepted the position that the testator intended
to bequeath the suit property in favour of his son-defendant
No. 1.
41. From the averments made in the plaint when read in
conjunction with the admitted document i.e. the Will dated
34 FAO No. 8/2024 & CR No. 9/2024
16.10.1989, it becomes clear that the suit property was
disposed of by virtue of Will dated 16.10.1989 by late Sh. J.B.
Nanda in favour of the defendant No.1. The said disposition
had taken effect in the year 2001, upon death of the testator,
well before the crucial date i.e., 20.12.2004. Therefore, the
disposition is saved by proviso to sub-section (1) of Section 6
of the Hindu Succession (Amendment) Act, 2005. Once it is
shown that subject matter of the suit had already vanished
inasmuch as it had been disposed of by the testator in favour
of the defendant No. 1, by virtue of Will dated 16.10.1989 who
had become absolute owner of the suit property, the plaintiff
has no cause to seek partition of the suit property. Thus, the
plaint does not disclose cause of action in her favour. The
same is, accordingly, liable to be rejected.
42. The learned trial court while considering the application under
Order VII Rule 11 of the Code of Civil Procedure has not gone
into the aforesaid aspects of the case. It has simply rejected
the application of defendant No. 1 on the ground that plaintiff
has pleaded in the plaint that she has a cause of action in her
favour. While arriving at said conclusion, the trial court has
not analyzed the averments made in the plaint and has not
tried to construe the covenants of the Will in question, which
is an admitted document.
35 FAO No. 8/2024 & CR No. 9/2024
43. A court is expected to apply its mind to the averments made in
the plaint and the documents annexed thereto while
considering as to whether or not the plaint discloses any cause
of action. The Court has not to act mechanically and rely
upon a routine averment that plaintiff has cause of action in
her favour, without actually analyzing the plaint and the
documents annexed thereto so as to ascertain whether the
said assertion of the plaintiff is borne out from the averments
made in the plaint.
44. It is high time that civil courts make proper use of provisions
contained in Order VII Rule 11 to weed out frivolous suits so
that due attention is devoted to civil suits raising triable
issues. It has been observed that civil courts are generally
reluctant to effectively use the provisions contained under
Order VII Rule 11 CPC and this has resulted in clogging of
courts with frivolous suits. It is a settled law that a party
should not be unnecessarily harassed in a suit.
45. The Supreme Court in the case of Liverpool & London S.P. &
I Association Ltd (supra) while relying upon the ratio laid in
Azhar Hussain Vs. Rajiv Gandhi, 1986 (Supp) SCC 315 has
explained the object of the provisions contained in Order VII
Rule 11 of the Code of Civil Procedure in the following manner:
36 FAO No. 8/2024 & CR No. 9/2024
―The idea underlying Order 7 Rule 11(a) is that when no
cause of action is disclosed, the courts will not
unnecessarily protract the hearing of a suit. Having regard
to the changes in the legislative policy as adumbrated by
the amendments carried out in the Code of Civil Procedure,
the Courts would interpret the provisions in such a manner
so as to save expenses, achieve expedition, avoid the
court’s resources being used up on cases which will serve
no useful purpose. A litigation which in the opinion of the
court is doomed to fail would not further be allowed to be
used as a device to harass a litigant.‖
46. From the foregoing analysis of legal position, it is clear that the
provisions contained in Order VII Rule 11 are mandatory in
nature and the same have to be resorted to by the courts to
reject vexatious plaints to avoid wastage of judicial time.
47. Learned trial court in the instant case has unfortunately failed
to apply its mind to the averments made in the plaint and the
documents annexed thereto as a result of which it has failed to
properly exercise the jurisdiction vested with it under Order
VII Rule 11 of the Code of Civil Procedure. The impugned
order passed by the learned trial court is, therefore, liable to
be set aside.
48. Accordingly, the revision petition is allowed and the impugned
order passed by the learned trial court is set aside.
Consequently, the application of defendant No. 1 for rejection
37 FAO No. 8/2024 & CR No. 9/2024
of the plaint is allowed and the plaint filed by the plaintiff is
rejected. As a consequence of rejection of the plaint, the
impugned order dated 15.09.2023 whereby interim injunction
has been granted by the learned trial court in favour of the
plaintiff shall also stand set aside and the appeal against the
said order shall stand allowed.
49. Disposed of.
(SANJAY DHAR)
JUDGE
SRINAGAR
22.08.2025
Naresh/Secy.
Whether order is speaking: Yes
Whether order is reportable: Yes
…
Naresh Kumar
2025.08.25 14:57
I attest to the accuracy and
integrity of this document