Rajasthan High Court – Jodhpur
Smt. Chandni Jain vs Board Of Revenue Ajmer And Ors on 7 July, 2026
[2026:RJ-JP:31542]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 7456/2016
CNR: RJHC010139212016
URN: CW / 15937U / 2016
Smt. Chandni Jain wife of Shri Mukesh Jain, aged 30 years,
Resident of A-52, Shastri Nagar, Jodhpur
----Petitioner
Versus
1. The Board of Revenue Ajmer for Rajasthan at Ajmer
through its Registrar
2. The Assistant Collector and Sub Divisional Officer, Jodhpur
3. Sarju son of Gobarram, Resident of Village Pal, Tehsil and
District Jodhpur
4. Omprakash son of Gobarram, Resident of Village Pal, Tehsil
and District Jodhpur
5. Lakshman son of Gobarram, Resident of Village Pal, Tehsil
and District Jodhpur
6. Pappuram son of Gobarram, Resident of Village Pal, Tehsil
and District Jodhpur
7. Mohanram son of Gobarram, Resident of Village Pal, Tehsil
and District Jodhpur
8. Gavri Devi wife of Narsingh Sen, Resident of Salavas, Tehsil
and District Jodhpur
9. Tulsidas son of Shri Deepchand, Resident of Bombay Motor
Circle, Jodhpur
10. Tehsildar, Jodhpur
----Respondents
For Petitioner(s) : Mr. O.P. Mehta with Mr. Abhishek
Mehta and Zubin Ahmed
For Respondent(s) : Mr. Sanjay Raj Paliwal, Govt. Counsel
Mr. M.S. Rajpurohit with Mr. Harish
Jangid
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
07/07/2026
1. The present writ petition under Article 227 of the
Constitution of India has been preferred assailing the order dated
11.05.2016 (Annx.11) passed by the Board of Revenue, Ajmer in
Revision No. TA/7286/2015/Jodhpur (Smt. Chandani Jain vs.
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Surjaram & Ors.), whereby the revision petition preferred by the
petitioner against the order dated 14.10.2015 (Annx.9) passed by
the Assistant Collector & Sub-Divisional Officer, Jodhpur in
Revenue Suit No.175/2012 (Surjaram & Ors. vs. Smt. Gavri Devi
& Ors.), rejecting the petitioner’s application under Order VII Rule
11 of C.P.C., was disposed of with a direction to the trial court to
frame a preliminary issue on the objections raised therein and
decide the same on the basis of the evidence available on record
in accordance with law.
2. Briefly stated, the facts of the case as set out in the writ
petition, are that one Late Shri Hukma was the recorded khatedar
tenant of agricultural land admeasuring 38 Bighas and 7 Biswas
comprised in Khasra No.492 situated at Village Pal, Tehsil and
District Jodhpur. Upon his demise intestate, mutation of the land
was sanctioned in the year 1984 in favour of his three sons,
namely, Modaram, Gobarram and Bastiram. Thereafter, pursuant
to a settlement, the property was partitioned amongst the
brothers in equal share, in pursuance whereof Gobarram came
into possession of 12 Bighas and 7 Biswas. On 14/15.11.1995,
Gobarram executed a registered sale deed in respect of 10 Bighas
of his share in favour of Smt. Gavri Devi and Shri Tulsi Das. The
land thereafter changed hands through successive registered
conveyances and ultimately came to be purchased by the present
petitioner by a registered sale deed dated 11.04.2008 executed by
Smt. Poonam Devi Lunia. According to the petitioner, she is a
bona fide purchaser for valuable consideration and is in lawful
possession of the land and also raised a boundary wall thereon.
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It has been further stated that in the year 2012, five sons of
Gobarram i.e. respondent Nos.3 to 7, instituted a revenue suit
under Sections 88 and 188 of the Rajasthan Tenancy Act, 1955
seeking declaration of khatedari rights, permanent injunction and
a declaration that the sale deeds executed by their father were
void to the extent of their alleged shares. Their case is founded on
the assertion that their names ought to have been entered in the
revenue records when the property devolved upon their father
from their grandfather and that they had acquired rights in the
property by birth.
The petitioner entered appearance and filed a written
statement contesting the suit. She also moved an application
under Order VII Rule 11 of C.P.C. praying for rejection of the plaint
on the grounds that it disclosed no cause of action, suit was
barred by law and that the Revenue Court lacked jurisdiction to
adjudicate upon the validity of registered sale deeds, and that the
suit suffered from non-joinder of necessary parties. The
respondents filed reply to the application. After hearing the parties
on the said application, the Assistant Collector & Sub-Divisional
Officer, by order dated 14.10.2015, dismissed the application
principally observing that the plea regarding absence of cause of
action had not been specifically raised in the written statement
and could appropriately be considered after framing of issues.
Aggrieved thereby, the petitioner preferred a revision before the
Board of Revenue. The Board, by the impugned order dated
11.05.2016, disposed of the revision by directing the Assistant
Collector to frame a preliminary issue on the objections raised in
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the application under Order VII Rule 11 of C.P.C. and decide the
same on the basis of the evidence available on record. The Board,
however, did not record any finding on the legality or correctness
of the order passed by the Assistant Collector.
It is further stated that during the pendency of the revision
proceedings, the Assistant Collector also passed an ad-interim
order directing the parties to maintain status quo in relation to the
suit property, whereagainst the petitioner has preferred a separate
appeal before the Revenue Appellate Authority. On these
premises, the petitioner seeks quashing of the impugned orders
and rejection of the plaint under Order VII Rule 11 of C.P.C.
3. Heard learned counsel for the parties.
4. Learned counsel for the petitioner submits that the Board of
Revenue committed a manifest error of law in declining to decide
the revision petition on merits and, instead, directing the trial
court to frame a preliminary issue on the objections raised under
Order VII Rule 11 of C.P.C. It is contended that once the Board
accepted that an application under Order VII Rule 11 of C.P.C. has
to be examined on the basis of the plaint alone, there was no
justification for relegating the parties to a further enquiry by
framing issues and considering evidence. Such a course, according
to learned counsel, defeats the very object underlying Order VII
Rule 11 of C.P.C.
5. It is further submitted that the Board failed to apply the
settled principles governing the exercise of jurisdiction under
Order VII Rule 11 of C.P.C. as consistently laid down by the
Hon’ble Supreme Court. The plaint, even if read in its entirety,
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does not disclose any enforceable cause of action and, therefore,
deserved rejection at the threshold. Instead of deciding the purely
legal issue itself, the Board erroneously remitted the matter to the
trial court, thereby prolonging avoidable litigation.
6. Learned counsel submits that even assuming the averments
contained in the plaint to be correct, respondent Nos.3 to 7 do not
possess any subsisting legal right in the suit property. The plaint
itself acknowledges that the property devolved upon Gobarram
after the death of Hukma. Such devolution, it is argued, took place
under Section 8 of the Hindu Succession Act, 1956 (for short ‘Act
of 1956’), whereunder the property devolves upon the Class-I
heirs, and therefore, the grandsons acquired no independent right
therein during the lifetime of their father. It is, therefore,
contended that the plaint does not disclose any cause of action.
7. It is next contended that the Board committed a further error
in directing the trial court to frame a preliminary issue regarding
maintainability. Whether the plaint discloses a cause of action is
required to be determined solely on the basis of the averments
contained therein and not on the basis of evidence. Framing of
issues or recording of evidence is alien to the scheme of Order VII
Rule 11 of C.P.C., which mandates rejection of the plaint at the
threshold wherever the statutory conditions stand satisfied.
8. Learned counsel further submits that the Assistant Collector
& Sub-Divisional Officer committed a jurisdictional error in
rejecting the application under Order VII Rule 11 of C.P.C. on the
ground that the plea had not been specifically raised in the written
statement. The question of maintainability of the plaint, it is
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argued, is one which the Court is required to examine
independently, irrespective of the defence pleaded by the
defendant. It is also submitted that the written statement, in fact,
specifically pleaded absence of cause of action and further
asserted that no effective relief could be granted without seeking
cancellation of the registered sale deeds before a competent court.
9. It is also urged that the suit is ex-facie barred by law and
limitation. The challenge is directed against sale transactions
executed in the year 1995, whereas, the suit came to be instituted
only in the year 2012. Besides, the Revenue Court has no
jurisdiction to adjudicate upon the validity of registered sale
deeds. These legal bars, according to learned counsel, are evident
from the plaint itself and attract the provisions of Order VII Rule
11(d) CPC.
10. Learned counsel further submits that the petitioner is a bona
fide purchaser for valuable consideration through a chain of
registered conveyances. Continuation of a suit which is otherwise
not maintainable has caused serious prejudice to the petitioner by
depriving her of the peaceful enjoyment of property lawfully
acquired by her and amounts to abuse of the process of the Court.
11. It is lastly contended that once the suit itself is liable to be
rejected under Order VII Rule 11 of C.P.C., the interim order
directing maintenance of status quo cannot survive, being merely
ancillary to the suit proceedings.
12. On the aforesaid premises, it is prayed that the impugned
orders dated 14.10.2015 and 11.05.2016 be quashed and set
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aside, the application under Order VII Rule 11 of C.P.C. be allowed
and the plaint be rejected.
13. Per contra, learned Government Counsel submits that there
is no dispute regarding the basic factual background relating to
the revenue entries, execution of the registered sale deeds,
institution of the revenue suit, filing of the written statement, the
application under Order VII Rule 11 of C.P.C., or the orders passed
by the courts below. However, it is submitted that the orders
passed by the Assistant Collector as well as the Board of Revenue
are legal, well reasoned and do not suffer from any jurisdictional
error warranting interference under Article 227 of the Constitution
of India. Accordingly, dismissal of the writ petition has been
prayed for.
14. Learned counsel appearing for respondent Nos.3 to 7
submits that the suit property is ancestral/coparcenary property in
the hands of Gobarram and that the respondents acquired rights
therein by birth. Therefore, according to him, Section 6 of the Act
of 1956 governs the rights of the parties and not Section 8, as
contended by the petitioner. It is submitted that the plaint clearly
discloses a valid cause of action and that the respondents are
entitled to challenge the alienation made by their father to the
extent of their alleged shares. It is also contended that the
Revenue Court possesses jurisdiction to entertain the suit seeking
declaration of khatedari rights and permanent injunction.
15. Learned counsel further submits that the application under
Order VII Rule 11 of C.P.C. was rightly rejected as the questions
raised by the petitioner involve disputed questions of fact relating
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to the nature of the property, the alleged partition and the
respective rights of the parties, all of which require adjudication
after evidence. It is further submitted that the Board of Revenue
rightly directed the trial court to consider the objections in
accordance with law. According to learned counsel, since the
alienations are alleged to be void to the extent of the respondents’
rights in ancestral property, no separate suit for cancellation of the
sale deeds is required and the relief claimed is maintainable
before the Revenue Court.
16. It is lastly submitted that the interim order directing
maintenance of status quo was passed upon recording a prima
facie satisfaction and the petitioner has suffered no legal prejudice
therefrom. It is, therefore, prayed that the writ petition be
dismissed.
17. I have considered the rival submissions made by learned
counsel for the parties, examined the material available on record
and gone through the judgments cited by the parties.
18. The principal question which arises for consideration is
whether, on a meaningful reading of the plaint alone, the plaint
discloses a cause of action and whether the suit is liable to be
rejected under Order VII Rule 11 of C.P.C. It is equally necessary
to examine whether the Board of Revenue was justified in
directing the trial court to frame a preliminary issue instead of
itself deciding the legality of the order rejecting the application
under Order VII Rule 11 of C.P.C.
19. The scope of enquiry under Order VII Rule 11 of C.P.C. is no
longer res-integra. It is well settled that while considering an
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application under the said provision, the Court is required to
confine itself exclusively to the averments contained in the plaint
and the documents relied upon by the plaintiff. Neither the
defence taken in the written statement nor disputed questions of
fact requiring evidence can be looked into. If from a plain reading
of the plaint it appears that no cause of action is disclosed or that
the suit is barred by any law, the Court is under a statutory
obligation to reject the plaint at the threshold. The object of the
provision is to prevent abuse of the process of law and to ensure
that vexatious litigation does not unnecessarily proceed to trial.
20. In the present case, the Assistant Collector rejected the
petitioner’s application substantially on the premise that the
objection regarding absence of cause of action had not been
specifically raised in the written statement and that the issue
could appropriately be considered after framing of issues. Such an
approach is wholly contrary to the settled principles governing
Order VII Rule 11 of C.P.C. The maintainability of a plaint is not
dependent upon the defence raised by the defendant. The Court is
required to independently examine the plaint and determine
whether the statutory requirements for rejection stand attracted.
Therefore, the reasoning adopted by the trial court cannot be
sustained.
21. Equally unsustainable is the approach adopted by the Board
of Revenue. Having entertained the revision petition against the
order refusing to reject the plaint, the Board was required to
examine the legality of the order passed by the trial court.
Instead, the Board merely directed the trial court to frame a
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preliminary issue on the objections raised under Order VII Rule 11
of C.P.C. Such a direction is inconsistent with the very scheme of
Order VII Rule 11 of C.P.C. The question whether a plaint discloses
a cause of action or is barred by law is to be decided on the
averments contained in the plaint itself and not after framing of
issues or recording evidence. The impugned order of the Board,
therefore, suffers from a manifest jurisdictional error.
22. The principal contention advanced on behalf of respondent
Nos.3 to 7 is that the suit property retained the character of
ancestral/coparcenary property in the hands of their father,
Gobarram, and that, consequently, they acquired an interest
therein by birth under Section 6 of the Act of 1956. The
correctness of this submission has to be tested solely on the basis
of the averments contained in the plaint, for while considering an
application under Order VII Rule 11 of C.P.C., the Court is confined
to the pleadings of the plaintiff and the documents relied upon
therein.
23. A meaningful reading of the plaint leaves no manner of doubt
that the plaintiffs themselves plead that the suit property
originally belonged to Hukma and that, upon his demise, it
devolved upon his three sons, namely, Modaram, Gobarram and
Bastiram. Thus, according to the plaintiffs’ own case, Gobarram
inherited the property upon the death of his father after the
commencement of the Act of 1956.
24. The controversy, therefore, centres on the legal effect of
such succession. The Act of 1956 was enacted to amend and
codify the law relating to intestate succession among Hindus. It is,
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therefore, necessary to examine its relevant provisions. As
reflected in its long title, the Act comprehensively governs the law
of intestate succession among Hindus. Section 4 accords the Act
overriding effect by providing that any rule of Hindu law in force
immediately before the commencement of the Act shall cease to
apply in respect of matters for which the Act makes provision.
Section 4 reads as follows:
“4. Overriding effect of Act. — Save as otherwise expressly
provided in this Act,–
(a) any text, rule or interpretation of Hindu Law or any custom
or usage as part of that law in force immediately before the
commencement of this Act, shall cease to have effect with
respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus in
so far as it is inconsistent with any of the provisions
contained in this Act.”
Section 6 prior to its amendment in 2005 reads as follows:
“6. Devolution of interest in coparcenary property.–When a
male Hindu dies after the commencement of this Act, having at
the time of his death an interest in a Mitakshara coparcenary
property, his interest in the property shall devolve by survivorship
upon the surviving members of the coparcenary and not in
accordance with this Act :
Provided that, if the deceased had left him surviving a
female relative specified in Class I of the Schedule or a male
relative specified in that class who claims through such female
relative, the interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by
survivorship.
Explanation 1.–For the purposes of this section, the interest of a
Hindu Mitakshara coparcener shall be deemed to be the share in
the property that would have been allotted 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.
Explanation 2.–Nothing contained in the proviso to this section
shall be construed as enabling a person who had separated
himself from the coparcenary before the death of the deceased or
any of his heirs to claim on intestacy a share in the interest
referred to therein.”
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It is not in dispute that the sale-deed was executed in the
year 1995 and merely the present suit was filed in 2012 which was
decreed on 14.10.2015, the amendment to Section 6, made in
2005, would not govern the rights of the parties in the present
case. This becomes clear from a reading of the proviso (i) to
Section 6 of the amended provision which states as follows:-
“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.”
The explanation to this Section also states thus:
“Explanation.–For the purposes of this section
“partition” means any partition made by execution of a
deed of partition duly registered under the Registration
Act, 1908 (16 of 1908) or partition effected by a decree of
a court.”
Section 8 reads as follows:-
“8. General rules of succession in the case of males. — The
property of a male Hindu dying intestate shall devolve according
to the provisions of this Chapter —
(a) firstly, upon the heirs, being the relatives specified in Class I
of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs,
being the relatives specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon
the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the
deceased.”
THE SCHEDULE
Class I
Son; daughter; widow; mother; son of a pre-deceased son;
daughter of a pre-deceased son; son of a pre-deceased daughter;
daughter of a pre-deceased daughter; widow of a pre-deceased
son; son of a pre-deceased son of a pre- deceased son; daughter
of a pre-deceased son of a pre-deceased son; widow of a pre-
deceased son of a pre-deceased son, son of a pre-deceased
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daughter of a pre-deceased daughter; daughter of a pre-deceased
daughter of a pre- deceased daughter; daughter of a pre-deceased
son of a pre-deceased daughter; daughter of a pre-deceased
daughter of a pre-deceased son.”
25. The distinction between Sections 6 and 8 is well settled.
Section 6 applies only where, at the time of succession, the
property continues to be Mitakshara coparcenary property and
regulates the devolution of the deceased coparcener’s interest
therein. Section 8, on the other hand, governs succession to the
property of a male Hindu dying intestate. Once succession takes
place under Section 8, the heir takes the property in his individual
capacity, unless the statute expressly provides otherwise.
26. The Hon’ble Supreme Court in Uttam vs. Saubhag Singh
and others; AIR 2016 Supreme Court 1169, it has been laid
down that :-
“20. Some other judgments were cited before us for the
proposition that joint family property continues as such even with
a sole surviving coparcener, and if a son is born to such
coparcener thereafter, the joint family property continues as such,
there being no hiatus merely by virtue of the fact there is a sole
surviving coparcener. Dharma Shamrao Agalawe v. Pandurang
Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand,
(2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh, (2013)
9 SCC 419, were cited for this purpose. None of these judgments
would take the appellant any further in view of the fact that in
none of them is there any consideration of the effect of Sections 4,
8 and 19 of the Hindu Succession Act. The law, therefore, insofar
as it applies to joint family property governed by the Mitakshara
School, prior to the amendment of 2005, could therefore be
summarized as follows:-
(i) When a male Hindu dies after the commencement of the Hindu
Succession Act, 1956, having at the time of his death an interest in
Mitakshara coparcenary property, his interest in the property will
devolve by survivorship upon the surviving members of the
coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30
Explanation of the Act, making it clear that notwithstanding
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of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained
in the proviso to Section 6, which states that if such a male Hindu
had died leaving behind a female relative specified in Class I of
the Schedule or a male relative specified in that Class who claims
through such female relative surviving him, then the interest of the
deceased in the coparcenary property would devolve by
testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener
who is governed by Section 6 proviso, a partition is effected by
operation of law immediately before his death. In this partition,
all the coparceners and the male Hindu’s widow get a share in the
joint family property.
(v) On the application of Section 8 of the Act, either by reason of
the death of a male Hindu leaving self-acquired property or by the
application of Section 6 proviso, such property would devolve
only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after
joint family property has been distributed in accordance with
Section 8 on principles of intestacy, the joint family property
ceases to be joint family property in the hands of the various
persons who have succeeded to it as they hold the property as
tenants in common and not as joint tenants.
21. Applying the law to the facts of this case, it is clear that on the
death of Jagannath Singh in 1973, the joint family property which
was ancestral property in the hands of Jagannath Singh and the
other coparceners, devolved by succession under Section 8 of the
Act. This being the case, the ancestral property ceased to be joint
family property on the date of death of Jagannath Singh, and the
other coparceners and his widow held the property as tenants in
common and not as joint tenants. This being the case, on the date
of the birth of the appellant in 1977 the said ancestral property,
not being joint family property, the suit for partition of such
property would not be maintainable. The appeal is consequently
dismissed with no order as to costs.”
In Hardeo Rai vs. Sakuntala Devi and others; Civil
Appeal No. 3040 of 2008 (SLP (C) No. 2569 of 2007), the
Hon’ble Supreme Court has observed as under :-
“20. One of the witnesses examined on behalf of the appellant
admitted that the appellant had been in separate possession of the
suit property. Appellant also in his deposition accepted that he
and his other co-sharers were in separate possession of the
property.
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21. For the purpose of assigning one’s interest in the property, it
was not necessary that partition by metes and bounds amongst the
coparceners must take place. When an intention is expressed to
partition the coparcenary property, the share of each of the
coparceners becomes clear and ascertainable. Once the share of
a co-parcener is determined, it ceases to be a coparcenary
property. The parties in such an event would not possess the
property as “joint tenants” but as “tenants in common”. The
decision of this Court in State Bank of India (supra), therefore is
not applicable to the present case.
22. Where a coparcener takes definite share in the property, he is
owner of that share and as such he can alienate the same by sale
or mortgage in the same manner as he can dispose of his separate
property.”
In Commissioner of Wealth-tax, Kanpur etc. vs.
Chander Sen etc.; AIR 1996 Supreme Court 1753, the
Hon’ble Supreme Court has observed as under :-
“14. It is clear that under the Hindu law, the moment a son is
born, he gets a share in the father’s property and becomes part of
the comparcenary. His right accrues to him not on the death of
the father or inheritance from the father but with the very fact of
his birth. Normally, therefore whenever the father gets a property
from whatever source from the grandfather or from any other
source, be it separated property or not, his son should have a
share in that and it will become part of the joint family of his son
and grandson and other members who form joint Hindu family
with him. But the question is; is the position affected by section 8
of the Succession Act, 1956 and if so, how? The basic argument is
that section 8 indicates the heirs in respect of certain property
and class I of the heirs includes the son but not the grandson. It
includes, however, the son of the predeceased son. It is this
position which has mainly induced the Allahabad High Court in
the two judgments, we have noticed, to take the view that the
income from the assets inherited by son from his father from
whom he has separated by partition can be assessed as income of
the son individually. Under section 8 of the Hindu Succession Act,
1956 the property of the father who dies intestate devolves on his
son in his individual capacity and not as karta of his own family.
On the other hand, the Gujarat High Court has taken the contrary
view.”
A coordinate Bench of this Court in Mahendra Kumar vs.
Mohd. Salim & Ors. (S.B. Civil Second Appeal No.
613/2011), has observed as under :-
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[2026:RJ-JP:31542] (16 of 19) [CW-7456/2016]“Though the appellant came out with a case that the property in
question belong to Moolchand his great grand-father, however, in
the oral evidence, it was clearly averred by the plaintiff that the
property belong to his grand-father Ram Narayan and, therefore,
it was ancestral property. The said plaintiff in cross-examination
admitted that Ram Narayan partitioned the properties amongst
his sons Arjun, Khyali Lal and Punam Chand and, therefore, on
account of said partition the suit property in the hands of Khyali
Lal was rightly held by the courts below as self acquired only.
Hon’ble Supreme Court in Commissioner of Wealth Tax, Kanpur &
Ors. v. Chander Sen & Ors. : (1986) 3 SCC 567 held and observed
as under:-
“10. The question here, is, whether the income or asset
which a son inherits from his father when separated by
partition the same should be assessed as income of the
Hindu undivided family of son or his individual income.
There is no dispute among the commentators on Hindu
law nor in the decisions of the court that under the Hindu
law as it is, the son would inherit the same as karta of his
own family. But the question, is, what is the effect of
Section 8 of the Hindu Succession Act, 1956? The Hindu
Succession Act, 1956 lays down the general rules of
succession in the case of males. The first rule is that the
property of a male Hindu dying intestate shall devolve
according to the provisions of Chapter II and class I of
the Schedule provides that if there is a male heir of class I
then upon the heirs mentioned in class I of the Schedule.
Class I of the Schedule reads as follows :
Son; daughter; widow; mother; son of a
predeceased son; daughter of a predeceased son;
son of a predeceased daughter; daughter of a
predeceased daughter; widow of a predeceased
son; son of a predeceased son of a predeceased
son; daughter of a predeceased son of a
predeceased son; widow of a predeceased son of a
predeceased son.
11. The heirs mentioned in class I of the Schedule are son,
daughter etc. including the son of a predeceased son but
does not include specifically the grandson, being a son of a
son living. Therefore, the short question, is, when the son
as heir of class I of the Schedule inherits the property, does
he do so in his individual capacity or does he do so as
karta of his own undivided family?
21. It is necessary to bear in mind the preamble to the
Hindu Succession Act, 1956. The preamble states that it
was an Act to amend and codify the law relating to
intestate succession among Hindus.
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[2026:RJ-JP:31542] (17 of 19) [CW-7456/2016]
22. In view of the preamble to the Act i.e. that to modify
where necessary and to codify the law, in our opinion it is
not possible when Shedule indicates heirs in class I and
only includes son and does not include son’s son but does
include son of a predeceased son, to say that when son
inherits the property in the situation contemplated by
Section 8 he takes it as karta of his own undivided family.
The Gujarat High Court’s view noted above, if accepted,
would mean that though the son of a predeceased son and
not the son of a son who is intended to be excluded under
Section 8 to inherit, the latter would by applying the old
Hindu law get a right by birth of the said property contrary
to the scheme outlined in Section 8. Furthermore as noted
by the Andhra Pradesh High Court that the Act makes it
clear by Section 4 that one should look to the Act in case of
doubt and not to the pre-existing Hindu law. It would be
difficult to hold today the property which devolved on a
Hindu under Section 8 of the Hindu Succession Act would
be HUF in his hand vis-a-vis his own son; that would
amount to creating two classes among the heirs mentioned
in class I, the male heirs in whose hands it will be joint
Hindu family property and vis- a-vis son and female heirs
with respect to whom no such concept could be applied or
contemplated. It may be mentioned that heirs in class I of
Schedule under Section 8 of the Act included widow,
mother, daughter of predeceased son etc.
24. The express words of Section 8 of the Hindu Succession
Act, 1956 cannot be ignored and must prevail.
The preamble to the Act reiterates that the Act is, inter
alia, to ‘amend’ the law, with that background the express
language which excludes son’s son but include son of a
predeceased son cannot be ignored.”
In view of the above undisputed fact and the law laid down by the
Hon’ble Supreme Court, the plaintiff had no right in the suit
property and, therefore, both the courts below were justified in
dismissing the suit/appeal filed by the appellant.
Consequently, there is no substance in the appeal and the same is,
therefore, dismissed.”
27. Applying the aforesaid principles to the facts pleaded in the
plaint, it is evident that the property devolved upon Gobarram
after the death of Hukma under the provisions of the Act of 1956.
The plaint contains no averment suggesting that the devolution
was governed by the rule of survivorship under Section 6. On the
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[2026:RJ-JP:31542] (18 of 19) [CW-7456/2016]
contrary, the pleaded case itself is that succession opened in
favour of Hukma’s sons. Consequently, the property inherited by
Gobarram assumed the character of his separate property and did
not remain coparcenary property in his hands.
28. Once the property inherited by Gobarram constituted his
separate property, respondent Nos.3 to 7 did not acquire any right
therein by birth during his lifetime. Their claim proceeds entirely
on the premise that the property continued to retain its ancestral/
coparcenary character notwithstanding succession under Section
8. Such a premise is contrary to the settled exposition of law by
the Hon’ble Supreme Court. Thus, even if every averment
contained in the plaint is accepted as correct, no enforceable legal
right in favour of the plaintiffs is disclosed.
29. In that view of the matter, the challenge laid by the plaintiffs
to the registered sale deeds executed by Gobarram cannot furnish
a legally sustainable cause of action. The plaint, therefore, fails to
disclose a cause of action within the meaning of Order VII Rule
11(a) CPC.
30. The submission advanced on behalf of the respondents that
the question whether the property was ancestral or self-acquired
requires adjudication upon evidence also cannot be accepted. The
controversy does not arise from any disputed foundational fact but
from the legal consequences flowing from the facts expressly
pleaded by the plaintiffs themselves. Where the necessary facts
are admitted in the plaint, the Court is not required to defer
consideration of an application under Order VII Rule 11 of C.P.C.
by directing the parties to adduce evidence.
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[2026:RJ-JP:31542] (19 of 19) [CW-7456/2016]
31. This Court is, therefore, of the considered opinion that the
plaint, on a meaningful reading of its averments alone, fails to
disclose any enforceable cause of action against the petitioner. The
Assistant Collector failed to exercise the jurisdiction vested in it
under Order VII Rule 11 of C.P.C., whereas the Board of Revenue
committed a manifest jurisdictional error in directing the trial
Court to frame a preliminary issue and proceed to decide the
same on the basis of evidence available on record. The impugned
orders, therefore, cannot be sustained.
32. Consequently, the writ petition deserves to succeed and is
accordingly allowed.
33. The orders dated 11.05.2016 passed by the Board of
Revenue, Ajmer and dated 14.10.2015 passed by the Assistant
Collector & Sub-Divisional Officer, Jodhpur are hereby quashed
and set aside. The application preferred by the petitioner under
Order VII Rule 11 of C.P.C. stands allowed. Consequently, the
plaint instituted by respondent Nos.3 to 7 in Revenue Suit
No.175/2012 stands rejected under Order VII Rule 11(a) of C.P.C.
34. Stay application and all pending application(s), if any, also
stand disposed of.
35. No order as to costs.
(MUKESH RAJPUROHIT),J
211/Inder/355
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