Smt. Chandni Jain vs Board Of Revenue Ajmer And Ors on 7 July, 2026

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    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

    SPONSORED

    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
    anything contained in the Act, the interest of a male Hindu in

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    Mitakshara coparcenary property is property that can be disposed
    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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    “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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    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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    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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    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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