What is basic concept of Interlocutory Res Judicata?

1. Leave granted.

2. The present appeal, directed against the

judgment and order dated 29.08.2024 of the

High Court of Karnataka at Bengaluru in Civil

Revision Petition No. 144 of 2023, whereby the

revision petition filed by Respondent Nos. 1 and

2 (legal representatives of Defendant No. 4 in the

suit), stood allowed setting aside the order dated

15.11.2022 passed by the LXI Additional City

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Civil and Sessions Judge, Bengaluru in O.S. No.

5352/2007, allowing I.A. No. IV filed under

Order VII Rule 11(a), (b) and (d) of the Code of

Civil Procedure, 1908 (hereinafter, ‘the CPC’),

and rejecting the plaint.

3. The central question that arises in this appeal

is whether the High Court was justified in

allowing a second application under Order VII

Rule 11 of the CPC seeking rejection of the

plaint in a suit for partition filed by the

daughters of a Hindu male who died intestate,

when an earlier application under Order VII

Rule 11(d) raising substantially the same issue

had been dismissed by the High Court itself in

Regular First Appeal No. 168 of 2009, and that

order had attained finality. The appeal also

raises the connected question of whether

Section 6(5) of the Hindu Succession Act, 1956

(hereinafter, ‘the H.S. Act’), as substituted by

the Hindu Succession (Amendment) Act, 2005

(39 of 2005) (hereinafter, ‘the 2005

Amendment’), operates as a jurisdictional bar to

the institution of a suit for partition, or whether

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it is in the nature of a saving clause only.

4. Sri B.M. Seenappa (hereinafter, ‘the propositus’)

died intestate on 06.03.1985. He was survived

by three daughters, namely, B.S. Lalitha, B.S.

Vasanthi, and B.S. Jayanthi (Appellant Nos. 1

to 3 herein, who were the plaintiffs in the suit);

his widow, Smt. Lakshmidevamma (Defendant

No. 1 in the suit); and four sons, namely, B.S.

Subhas (Defendant No. 2), B.S. Jai Prakash

(Defendant No. 3), B.S. Ramesh (Defendant No.

4, since deceased, now represented by his sons

Bhuvanesh and Venkatesh, being Respondent

Nos. 1 and 2 herein), and B.S. Ravindranath

(Defendant No. 5). The widow and the

sons/legal representatives, are the Respondents

before this Court.

5. According to the defendants, the properties of

the propositus were divided orally among the

sons on 06.09.1985 in the presence of

Panchayatdars, pursuant to oral directions

given by the propositus before his death. It is

further claimed by the defendants that on

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25.10.1988, money was paid to the three

daughters, and they endorsed a written family

partition document (Palupatti) as consenting

witnesses, recording their no-objection for the

brothers to divide the properties among

themselves.

6. The appellants dispute both the nature and

validity of these transactions. The plaint does

not acknowledge or admit the Palupatti of 1988

or any oral partition; it treats the registered

Partition Deed dated 16.06.2000 as the only

relevant partition and characterises it as having

been done “secretly” on the back of the

plaintiffs. This deed was executed among the

mother and the four sons whereby the

properties of the propositus were divided

exclusively amongst the sons and the mother.

The three daughters were not parties to this

deed and no share whatsoever was allotted to

them.

7. On 11.07.2007, the plaintiffs/appellants filed a

suit seeking partition of five suit schedule

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properties and allotment of 1/8th share to each

of the eight legal heirs (three daughters, four

sons, and the mother). The plaint set up the

case that the propositus died intestate and that

the three daughters, as co-owners were entitled

to a share in the properties.

8. On 25.01.2008, Defendant Nos. 1 to 3 filed I.A.

No. 2 under Order VII Rule 11(d) of the CPC read

with Section 151 thereof, seeking rejection of

the plaint on the ground that the suit was

barred by the proviso to Section 6(1), Section

6A(d) of the Hindu Succession (Karnataka

Amendment) Act, 1990, and Section 6(5) of the

H.S. Act. The reliance was on the registered

Partition Deed dated 16.06.2000 to contend

that the daughters, having been married prior

to the Karnataka Amendment, had no right to

seek partition. By judgment and order dated

29.11.2008, the XXII Additional City Civil

Judge, Bangalore, allowed the application and

rejected the plaint, holding that the suit was

barred by the statutory provisions.

9. The appellants preferred R.F.A. No. 168 of 2009

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before the High Court of Karnataka. The High

Court, by its judgment dated 31.01.2013,

allowed the appeal and set aside the order of

plaint rejection, remanding the matter to the

Trial Court for fresh disposal. The operative

reasoning of the High Court reads as follows:

“In my opinion, even assuming that there is a

partition in 2000 prior to 2004, even assuming

that the daughters will not get the share, but it

is not disputed that their father had died

intestate. If they have a share in the father’s

share, still the suit can be maintained. If that

is so, the Trial Court could not have rejected the

plaint without even considering the scope of

Order 7 Rule 11(d) of CPC. It is not for the Trial

Court to find out whether the plaintiffs would

succeed or not. That is not the ground to reject

the plaint. Even assuming that the plaintiffs

are likely to fail in the suit, that cannot be a

ground to go into the merits and decide the

matter under Order 7 Rule 11(d) of CPC. Hence,

rejection per se being misconceived, is liable to

be set aside.”

10. Two aspects of the 2013 order deserve

emphasis. First, the High Court proceeded on

the assumption most favourable to the

defendants, that the partition of 2000 is valid

and that the daughters do not get a coparcenary

share and still held the plaint to be

maintainable because the father had died

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intestate and the daughters have a right in the

father’s share under Section 8. In other words,

the ratio of the 2013 order rested not on the

coparcenary rights of daughters under the 2005

Amendment, but on the independent right of

daughters as Class I heirs under Section 8 of

the Act. Second, this order was not challenged

further by any party and attained finality. The

matter was remanded to the Trial Court, issues

were framed, and the suit was set down for

evidence.

11. On 16.12.2021, more than eight years after the

2013 order attained finality, the legal

representatives of Defendant No. 4 (Respondent

Nos. 1 and 2 herein) filed a second application

under Order VII Rule 11(a), (b) and (d) of the

CPC, being I.A. No. IV, seeking rejection of the

plaint. It is pertinent to note that the other

defendants did not join this application. The

application contended that the suit was barred

in view of a ‘change in law’ brought about by the

decision of this Court in Vineeta Sharma v.

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Rakesh Sharma and Others1, which, it was

asserted, had settled that Section 6(5) of the

H.S. Act operates as a complete bar to suits

seeking reopening of partitions effected before

20.12.2004.

12. The appellants objected, contending that: (a) the

application was barred by res judicata as the

identical issue had been decided by the High

Court in R.F.A. No. 168 of 2009; and (b) the

appellants claim as daughters of a father, who

died intestate, are entitled under Section 8 of

the H.S. Act.

13. The LXI Additional City Civil and Sessions

Judge, Bengaluru, by order dated 15.11.2022,

dismissed I.A. No. IV, holding that the 2013

order of the High Court in R.F.A. No. 168 of

2009 operated as res judicata. The Trial Court

also held, on the merits, that Section 6(5) of the

H.S. Act does not create a bar to the filing of the

suit.

1 (2020) 9 SCC 1

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14. Respondent Nos. 1 and 2 thereupon filed C.R.P.

No. 144 of 2023 before the High Court of

Karnataka. It is significant that the other

defendants did not challenge the Trial Court’s

order.

15. The High Court, by its impugned judgment and

order dated 29.08.2024, allowed the revision

petition, set aside the Trial Court’s order dated

15.11.2022, allowed I.A. No. IV, and rejected the

plaint.

16. While deciding the matter, the High Court

addressed two issues: the first being res judicata

and the second being the effect of proviso to

Section 6(1) and Section 6(5) of the H.S. Act to

the present matter. On the question of res

judicata, it held that the principle does not apply

for two reasons: first, the earlier application (I.A.

No. 2) was filed by Defendant Nos. 1 to 3,

whereas the second application (I.A. No. IV) was

filed by the legal representatives of Defendant

No. 4, and therefore the earlier order “was not

passed on an application filed by Defendant No.

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4(a), (b) and (d)”; and second, the decision of this

Court in Vineeta Sharma (supra) constituted a

‘change in law’ which rendered the 2013 High

Court order inapplicable as Res judicata.

17. On the question of Section 6(5) of the Act, the

High Court held that the registered Partition

Deed dated 16.06.2000 was saved under the

proviso to Section 6(1) and Section 6(5) of the

Act. The Court observed that the appellants

themselves had admitted in paragraph 5 of the

plaint that the defendants had partitioned the

suit schedule properties, and that the only

partition this could refer to was the registered

deed of 16.06.2000. Since the Partition Deed

was annexed to the plaint, its contents would

have to be read as part and parcel of the plaint.

The Court held that the saving does not

distinguish between the property of the father

and the property partitioned amongst other

members; the partition was in respect of all

properties, and therefore the question of the

appellants claiming any particular right in the

share of the father did not arise. The Court

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further held that since the suit sought partition

of the entire suit schedule property and not just

the father’s share, the Partition Deed was saved

and the suit unsustainable.

18. The above decision of the High Court dated

29.08.2024 stands assailed in the present

Appeal. On 25.10.2024, this Court issued notice

and directed that status quo be maintained with

respect to the subject properties. It is in the

aforesaid factual backdrop and stand of the

parties that the present appeal has been heard.

19. Learned counsel appearing for the appellants

submitted that the impugned order is vitiated

on three grounds, each of which is

independently sufficient to set it aside.

20. First, it was submitted that the second

application under Order VII Rule 11 (I.A. No. IV)

is barred by the principle of res judicata, both

inter-party and interlocutory. The issue of

whether the plaint discloses a cause of action

notwithstanding the registered Partition Deed

was directly and substantially in issue in the

first Order VII Rule 11 proceedings, the same

was heard and decided on merits by the High

Court in R.F.A. No. 168 of 2009, and that

decision became final. Reliance was placed on

Satyadhyan Ghosal and Others v. Deorajin Debi

(Smt) and Another2, for the proposition that the

principle of res judicata applies between two

stages of the same litigation. It was further

submitted that the High Court’s observation

that res judicata does not apply because the first

application was filed by Defendant Nos. 1 to 3

and the second by the legal representatives of

Defendant No. 4 is untenable, inasmuch as all

defendants share a common interest and litigate

under the same title within the meaning of

Explanation VI to Section 11 of the CPC.

21. It was further submitted that the reliance

placed by the High Court on Vineeta Sharma

(supra) as constituting a ‘change in law’ which

overrides res judicata is misplaced. The

exception recognised in Mathura Prasad Bajoo

2 AIR 1960 SC 941

C.A. @ SLP (C) No.23709/2024 Page 13 of 50

Jaiswal and Others v. Dossibai N.B. Jeejeebhoy3

that a subsequent change in law can render an

earlier decision on a pure question of law

ineffective as res judicata has no application,

because Vineeta Sharma (supra) does not alter

the settled position that where a Hindu male

dies intestate, his property devolves under

Section 8 on all Class I heirs including

daughters, which was the very basis of the 2013

order.

22. Second, it was submitted that Section 6(5) of the

H.S. Act is a saving clause, not a jurisdictional

bar. It saves valid, completed partitions from the

retroactive reach of the 2005 Amendment; it

does not, in and of itself, bar the institution of a

suit. A daughter can always file a suit for

partition, and it is a matter for trial whether a

valid partition within the meaning of Section

6(5) had in fact been effected. Even if the

registered Partition Deed is ‘saved’ from being

invalidated by the 2005 Amendment, the

validity of that partition executed without the

3 (1970) 1 SCC 613

C.A. @ SLP (C) No.23709/2024 Page 14 of 50

knowledge or consent of the daughters and that

too without giving them any share is itself a

contested question that must be adjudicated at

trial. An invalid or illegal partition is not saved

merely because it is registered.

23. On the scope of Order VII Rule 11, the learned

counsel submitted that the provision permits

rejection of the plaint only where the suit

appears, from the statement in the plaint, to be

barred by any law. Reliance was placed on Nusli

Neville Wadia v. Ivory Properties and Others4, for

the proposition that disputed questions of fact

cannot be decided under Order VII Rule 11; and

on Mayar (H.K.) Ltd. and Others v. Owners &

Parties, Vessel M.V. Fortune Express and

Others5, for the proposition that the Court is

not required to examine at the threshold stage

whether the plaintiffs will ultimately succeed

but only whether a cause of action is disclosed.

24. Third, it was contended that even assuming that

the daughters are not coparceners and the

4 (2020) 6 SCC 557 (Para 64)

5 (2006) 3 SCC 100 (Para 11)

C.A. @ SLP (C) No.23709/2024 Page 15 of 50

registered Partition Deed is saved under Section

6(5), the propositus having died intestate on

06.03.1985, his undivided share in the

coparcenary property devolved by succession on

all Class I heirs including the three daughters

by virtue of the proviso to the erstwhile

unamended Section 6 read with Section 8 of the

H.S. Act. This right is independent of the 2005

Amendment and is wholly unaffected by Section

6(5). The suit is, at minimum, maintainable to

the extent of the daughters’ share in the father’s

property.

25. In such circumstances referred to above, the

learned counsel prays that the appeal be

allowed, the impugned order be set aside, the

plaint be restored for trial, and the status quo

be maintained.

26. Learned counsel appearing for the respondents

submitted that the registered Partition Deed

dated 16.06.2000 is a partition “effected” before

20.12.2004 within the meaning of Section 6(5)

read with its Explanation, and is therefore

C.A. @ SLP (C) No.23709/2024 Page 16 of 50

saved. It was submitted that the appellants

themselves produced this deed with the plaint

and admitted that the defendants had

partitioned the suit schedule properties. Since

the Partition Deed was duly registered, acted

upon, and several properties further alienated

to third parties who have constructed buildings

and are in possession, the proviso to Section

6(1) and Section 6(5) of the amended H.S. Act

save this partition from being reopened, and the

suit is barred by law. Reliance was placed on the

decision in Vineeta Sharma (supra).

27. On res judicata, it was contended that Vineeta

Sharma (supra) constitutes a change in law that

overrides the 2013 order of the High Court. It

was submitted that the first application was

filed by Defendant Nos. 1 to 3 only, and the

second by the legal representatives of Defendant

No. 4 who were not applicants in the earlier

proceedings, and therefore res judicata does not

strictly apply. The learned counsel further

submitted that the two applications were filed

under different sub-clauses of Order VII Rule

11, the first being under clause (d) alone while

the second under clauses (a), (b) and (d).

28. On merits, it was argued that there was an oral

partition in 1985, a Palupatti (family settlement

document) in 1988 in which the daughters

received monetary consideration and endorsed

the family partition, which amounts to

relinquishment and estoppel. It was also

submitted that the appellants have not

specifically pleaded a claim under Section 8 in

the plaint and cannot be allowed to take

advantage of clever drafting. Reliance was

placed on T. Arivandandam v. T.V. Satyapal and

Another6, and Church of Christ Charitable Trust

and Educational Charitable Society v.

Ponniamman Educational Trust7, for the

proposition that frivolous and vexatious plaints

are liable to be rejected.

29. We have heard the learned counsel appearing

for the parties and have perused the materials

6 (1977) 4 SCC 467

7 (2012) 8 SCC 706

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on record. The following questions fall for our

consideration:

(i) Whether the second application under

Order VII Rule 11 (I.A. No. IV) is barred by

the principle of res judicata;

(ii) Whether Section 6(5) of the H.S. Act

operates as a bar to the institution of a suit,

warranting rejection of the plaint under

Order VII Rule 11(d);

(iii) Whether the appellants have a right

under Section 8 of the H.S. Act that is

independent of the 2005 Amendment and

unaffected by Section 6(5).

30. Before adverting to the rival submissions

canvassed on either side, it is apposite to briefly

advert to the settled principles governing the

scope of Order VII Rule 11 of the CPC, as they

form the doctrinal backdrop against which each

of the three questions must be assessed for

decision.

31. Order VII Rule 11(d) of the CPC provides that

the plaint shall be rejected where the suit

appears from the statement in the plaint to be

barred by any law. The provision is designed to

weed out, at the threshold, suits which are ex

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facie unsustainable. The scope of inquiry under

this provision is, however, circumscribed. In

Saleem Bhai and Others v. State of Maharashtra

and Others8, this Court in Para 9 held that for

deciding an application under Order VII Rule

11, only the averments in the plaint are relevant

and the Court cannot look into the written

statement or any other external material.

32. In Mayar (H.K.) Ltd. (supra), this Court in Para

9 held that the question whether the plaint

discloses a cause of action is a question of fact

which has to be gathered on the basis of the

averments made in the plaint in its entirety,

taking those averments as correct. The Court

cannot reject a plaint under Order VII Rule 11 if

any cause of action is disclosed. In Nusli Neville

Wadia (supra), this Court reiterated that

disputed questions of fact cannot be decided

under Order VII Rule 11.

33. With the aforesaid principles as the touchstone,

we proceed to examine the three questions

8 (2003) 1 SCC 557

C.A. @ SLP (C) No.23709/2024 Page 20 of 50

formulated above.

34. The principle of res judicata is codified in

Section 11 of the CPC. It is convenient, at this

stage, to reproduce the provision:

“11. Res judicata.—No Court shall try any suit

or issue in which the matter directly and

substantially in issue has been directly and

substantially in issue in a former suit between

the same parties, or between parties under

whom they or any of them claim, litigating

under the same title, in a Court competent to

try such subsequent suit or the suit in which

such issue has been subsequently raised, and

has been heard and finally decided by such

Court.

Explanation I.—The expression ‘former suit’

shall denote a suit which has been decided

prior to a suit in question whether or not it was

instituted prior thereto.

Explanation II.—For the purposes of this

section, the competence of a Court shall be

determined irrespective of any provisions as to

a right of appeal from the decision of such

Court.

Explanation III.—The matter above referred to

must in the former suit have been alleged by

one party and either denied or admitted,

expressly or impliedly, by the other.

Explanation IV.—Any matter which might and

ought to have been made ground of defence or

attack in such former suit shall be deemed to

have been a matter directly and substantially

in issue in such suit.

Explanation V.—Any relief claimed in the

plaint, which is not expressly granted by the

decree, shall for the purposes of this section, be

deemed to have been refused.

Explanation VI.—Where persons litigate bona

fide in respect of a public right or of a private

right claimed in common for themselves and

others, all persons interested in such right

shall, for the purposes of this section, be

deemed to claim under the persons so

litigating.”

35. The provision embodies a rule of conclusiveness

that is founded in considerations of public

policy. It rests upon the salutary doctrine that

there must be a finality to litigation, and that a

party which has once succeeded or failed on an

issue should not be permitted to re-agitate the

same at a subsequent stage. The principle

applies not only between two separate suits but

also between two stages of the same litigation

what is referred to as ‘interlocutory res judicata.’

In Satyadhyan Ghosal (supra), a three-Judge

Bench of this Court in Para 8 held:

“The principle of res judicata applies also as

between two stages in the same litigation to

this extent that a court, whether a trial court or

a higher court having at an earlier stage

decided a matter in one way will not allow the

parties to re-agitate the matter again at a

subsequent stage of the same proceedings.”

36. The issue that was raised in I.A. No. IV, whether

the plaint in O.S. No. 5352/2007 is liable to be

rejected on the ground that the suit is barred by

Section 6(5) of the Act is the same issue that

was raised in I.A. No. 2, heard, and decided by

the High Court on 31.01.2013 in R.F.A. No. 168

of 2009. The 2013 order held, in terms, that the

plaint cannot be rejected at the threshold; that

even assuming there is a partition and even

assuming the daughters will not get a

coparcenary share, the father having died

intestate, the daughters have a right in the

father’s share; and that whether the plaintiffs

would ultimately succeed is not a ground for

rejection under Order VII Rule 11(d). That order

became final. No materially different ground is

raised in the second application.

37. The High Court, in the impugned order, sought

to avoid the application of res judicata on the

ground that the first application was filed by

Defendant Nos. 1 to 3, whereas the second was

filed by the legal representatives of Defendant

No. 4. This reasoning does not commend itself

to us. All defendants are sons (or their legal

representatives) of the same propositus. They

share a common interest: they defend the same

Partition Deed, resist the same suit for partition,

and assert the same plea that the daughters

have no right to the suit properties. They litigate

under the same title within the meaning of

Explanation VI to Section 11 of the CPC, as

reproduced above.

38. In Singhai Lal Chand Jain v. Rashtriya

Swayamsewak Sangh, Panna and Others (1996) 3 SCC 149, this

Court clarified that if litigation was conducted

bona fide to protect a common interest, the

decision operates as res judicata against all

persons interested in that right. In the present

case, the defendants collectively resisted the

suit and participated in the first Order VII Rule

11 proceedings. The legal representatives of

Defendant No. 4 cannot be heard to say that the

2013 order does not bind them merely because

their predecessor did not file the application

that gave rise to that order. The interest

asserted is indivisible; the parties litigate under

the same title.

39. We may further observe that Explanation IV to

Section 11 of the CPC provides that “any matter

which might and ought to have been made

ground of defence or attack in such former suit

shall be deemed to have been a matter directly

and substantially in issue in such suit.” The

respondents’ submission that the two

applications were filed under different subclauses

of Order VII Rule 11, the first under

clause (d) alone and the second under clauses

(a), (b) and (d) is of no consequence. The ground

that the plaint does not disclose a cause of

action [clause (a)] or is defective [clause (b)]

could have been, and indeed ought to have

been, raised in the first application. The mere

invocation of additional sub-clauses in the

second application does not take the matter

outside the scope of res judicata. The substance

of the issue, whether the plaint should be

rejected on the ground that the suit is barred by

Section 6(5) of the H.S. Act, remains the same.

A party cannot circumvent the finality of an

adverse order by re-framing the same challenge

under a different procedural provision.

40. The second limb of the High Court’s reasoning,

that Vineeta Sharma constitutes a ‘change in

law’ which overrides res judicata is equally

unsustainable. It is true that in Mathura Prasad

Bajoo Jaiswal (supra), this Court in Para 9 held

that a subsequent change in law can render an

earlier decision on a pure question of law

ineffective as res judicata. However, this

exception applies only where the legal basis of

the earlier decision has been undermined by the

subsequent pronouncement.

41. The question, therefore, is whether Vineeta

Sharma effects any change in the law relevant

to the 2013 order. The answer, in our view, is in

the negative. The 2013 order proceeded on the

basis that even assuming the daughters are not

coparceners and the partition is valid, the father

died intestate and the daughters have a right in

the father’s share under Section 8 of the H.S.

Act. Vineeta Sharma (supra) deals with the

scope of the 2005 Amendment vis-à-vis

coparcenary rights and the saving clause for

pre-2004 partitions. It holds, inter alia, that

daughters become coparceners by birth, that

the 2005 Amendment is retroactive in nature,

and that Section 6(5) saves only partitions

effected before 20.12.2004 by registered deed or

court decree. What Vineeta Sharma (supra) does

not do is alter the settled position which was the

foundation of the 2013 order, that where a

Hindu male dies intestate, his property devolves

under Section 8 on all Class I heirs including

daughters. The “basis” of the 2013 judgment

remains entirely undisturbed by Vineeta

Sharma. The High Court’s reasoning that

Vineeta Sharma (supra) did away with the basis

of the 2013 order is, with respect, erroneous.

42. The second application is a transparent attempt

to re-agitate a concluded issue by dressing it in

the garb of Vineeta Sharma (supra), which, as

we have noted above, has no bearing on the core

question decided in 2013. The issue raised in

the second application was directly and

substantially settled by the 2013 judgment. No

different factual or legal ground was raised that

takes the second application outside the scope

of that settled determination. On this ground

alone, the impugned order is liable to be set

aside.

43. Though the second application is barred by res

judicata, but for the sake of clarity and

completeness, we consider it appropriate to

address the question of whether Section 6(5) of

the H.S. Act operates as a bar to the suit. Before

doing so, it is necessary to set out in brief the

relevant statutory provisions and the legislative

history.

44. The erstwhile Section 6 of the H.S. Act, as

originally enacted in 1956, read as under:

“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 has separated himself

from the coparcenary before the death of the

deceased or any of his heirs to claim on

intestacy a shano in the interest referred to

therein.”

45. The proviso to the erstwhile Section 6 is of

particular significance to the present case. It

provided that where the deceased coparcener

left behind a female relative specified in Class I

of the Schedule, which includes daughters, his

interest in the coparcenary property would

devolve by intestate succession under the H.S.

C.A. @ SLP (C) No.23709/2024 Page 29 of 50

Act (that is, under Section 8) and not by

survivorship. It is this proviso, read with Section

8, that conferred upon the appellant-daughters

a right in the father’s share upon the father’s

intestate death in 1985, well before the 2005

Amendment came into force.

46. The substituted Section 6 of the H.S. Act, as

amended by the 2005 Amendment and came in

force with effect from 09.09.2005, reads as

under:

“6. Devolution of interest of 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:

Provided that nothing contained in this subsection

shall affect or invalidate any

disposition or alienation including any partition

C.A. @ SLP (C) No.23709/2024 Page 30 of 50

or testamentary disposition of property which

had taken place before the 20th day of

December, 2004.

xxx xxx xxx

(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 duly registered

under the Registration Act, 1908 (16 of 1908)

or partition effected by a decree of a court.”

47. Two features of the substituted Section 6 merit

emphasis. First, sub-section (1) confers upon

the daughter of a coparcener the status of

coparcener by birth, in the same manner as a

son. Second, sub-section (5), read with its

Explanation, saves from the reach of the

substituted Section 6 only those partitions that

have been effected before 20.12.2004 by a

registered deed or a court decree. The proviso to

sub-section (1) and sub-section (5) are, in

substance, saving provisions, they preserve the

validity of completed past transactions from

being unsettled by the new coparcenary rights

conferred upon daughters.

C.A. @ SLP (C) No.23709/2024 Page 31 of 50

48. The legislative history illuminates the purpose

of these saving provisions. The Hindu

Succession (Amendment) Bill, 2004 was

introduced in the Rajya Sabha on 20.12.2004.

The Statement of Objects and Reasons noted

that the retention of the Mitakshara

coparcenary without including females

“contributes to her discrimination on the

ground of gender” and “has led to oppression

and negation of her fundamental right of

equality guaranteed by the Constitution.” The

Bill sought to remove this discrimination by

giving equal rights to daughters. The Standing

Committee of Parliament recommended, inter

alia, that the partition of Hindu family property

should be properly defined in the Amendment

Act, and suggested that partition for all

purposes should be either by registered

documents or by decree of court. This

recommendation was incorporated in the

Explanation to Section 6(5).

49. Before adverting to the decision of this Court in

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Vineeta Sharma (supra), it is necessary to notice

the earlier decision of this Court in Ganduri

Koteshwaramma and Another v. Chakiri Yanadi

and Another10. The question before the Court

was whether a preliminary decree of partition

amounts to a “partition effected” within the

meaning of Section 6(5). The Court answered in

the negative. Reading the Explanation

appended to Section 6(5), the Court held that

the non-applicability of the section is attracted

only where partition has been effected before

20.12.2004 by a registered deed of partition or

by a decree of a court. A preliminary decree, the

Court reasoned, does no more than determine

the rights and interests of the parties and it is

the final decree that partitions the immovable

property by metes and bounds. The suit for

partition remains pending in the interregnum,

and if supervening circumstances arise between

the preliminary and final decree, there is no

impediment to the court amending the

preliminary decree or passing a fresh one to

10 (2011) 9 SCC 788

C.A. @ SLP (C) No.23709/2024 Page 33 of 50

reflect the changed situation.

50. This Court, in Vineeta Sharma (supra), settled

the law governing the interpretation and scope

of the substituted Section 6 of the Act. The Court

held that Section 6(1), as substituted by the

2005 Amendment, confers coparcenary status

upon the daughter by birth, in the same manner

as a son, and that the provision is retroactive in

nature, the daughter is deemed a coparcener

from birth, though the rights are claimable only

with effect from 09.09.2005. The Court further

held that the father coparcener need not be

living as on that date. On the scope of the saving

clause, the Court held that Section 6(5), read

with its explanation, saves only partitions

effected before 20.12.2004 by a registered deed

of partition or by a decree of a court; no other

form of partition is recognised.

51. The Court in Vineeta Sharma (supra) was

particularly concerned with the potential for

misuse of the saving clause. It held that the

special definition of partition in the Explanation

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to Section 6(5) was deliberately enacted to

prevent daughters from being deprived of their

coparcenary rights through fraudulent or

collusive pleas of oral partition or unregistered

memoranda of partition. A plea of oral partition

based solely on oral evidence must be rejected

outright and only in exceptional cases, where

such a plea is supported by public documents

and is evinced in the same manner as a

partition effected by a court decree, may it be

entertained. The Court underscored that the

object of the beneficial provisions of the 2005

Amendment to secure the equal rights of

daughters as coparceners must be given full

effect, and courts must not permit that object to

be defeated by the setting up of sham or

frivolous defences.

52. In Prasanta Kumar Sahoo and Others v.

Charulata Sahu and Others11, a two-Judge

Bench of this Court reiterated the narrow scope

of Section 6(5). The Court held, following

Ganduri Koteshwaramma (supra), that a

11 (2023) 9 SCC 641

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preliminary decree of partition does not

constitute a “partition effected” under Section

6(5); only a final decree effects partition by

metes and bounds. The Court also held that a

settlement under Order XXIII Rule 3 of the CPC

without the consent and signatures of all cosharers

cannot be sustained.

53. The import of the foregoing decisions, read

together, is that Section 6(5) is a saving clause

of strict and narrow application. It saves from

the retroactive reach of the 2005 Amendment

only those partitions that have been effected

that is, completed and finalised before

20.12.2004 by a registered deed or a court

decree. It does not create a jurisdictional bar to

the institution of a suit. The distinction between

a “bar” and a “saving clause” is legally

significant. While a bar prevents the Court from

entertaining the suit at all, but a saving clause

on the other hand provides a defence on merits

that must be proved by the party asserting it.

54. In the present case, the plaint does not admit a

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concluded and binding partition. It

characterises the registered Partition Deed of

2000 as having been executed by the wife and

sons on the back of the daughters, without their

knowledge or consent. The validity of such a

partition executed secretly behind the

daughters’ backs without giving them any share

is quintessentially a contested question of fact

and law requiring evidence on the nature of the

property, the mode of devolution, and the

validity of the alleged partitions (oral, Palupatti,

and registered). To treat Section 6(5) as

foreclosing this inquiry at the threshold is to

conflate the existence of a registered deed with

the conclusion that the partition is valid and

binding on all persons. That conflation is

impermissible at the stage of Order VII Rule 11.

55. The High Court’s further reasoning that the

saving under Section 6(5) does not distinguish

between the property of the father and the

property partitioned amongst other members,

and that therefore, the question of the

appellants claiming any particular right in the

C.A. @ SLP (C) No.23709/2024 Page 37 of 50

share of the father does not arise amounts, in

substance, to an adjudication on the merits of

the suit at the threshold stage. Whether the

properties devolved on the sons by survivorship

as coparcenary property, or whether the

propositus having died intestate in 1985, his

undivided share devolved by succession under

Section 8 on all Class I heirs including the

daughters, is the central contested question in

the suit. This is a mixed question of fact and

law. It cannot be resolved by reference to the

Partition Deed alone; it requires evidence and

adjudication. The High Court, in answering this

question against the appellants at the revisional

stage, exceeded the permissible scope of inquiry

under Order VII Rule 11 and, indeed, the

revisional jurisdiction under Section 115 of the

CPC.

56. The respondents’ reliance on the oral partition

of 1985 and the Palupatti of 1988 to argue

relinquishment and estoppel on the part of the

appellants is, in substance, a defence on the

merits. The plaint does not admit these facts.

C.A. @ SLP (C) No.23709/2024 Page 38 of 50

They cannot be adjudicated at the Order VII

Rule 11 stage. As this Court has consistently

held, the averments in the plaint are to be taken

as they stand for the purposes of Order VII Rule

11, and the plaint can be rejected only if, taking

those averments as correct, the suit is shown to

be barred by law. No such bar is disclosed.

57. The respondents’ reliance on T. Arivandandam

(supra) and Church of Christ Charitable Trust

(supra), does not assist their case. Those

decisions deal with plaints that are palpably

frivolous or vexatious or that do not disclose any

cause of action whatsoever. The present plaint

is not of that character. It sets up a specific case

of intestate death of the propositus, claims a

right as Class I heirs under Section 8, and

challenges the validity of a partition executed

without the daughters’ knowledge or consent.

The plaint discloses a clear cause of action that

warrants adjudication at trial.

58. The High Court’s reasoning that since the suit

sought partition of the “entire” suit schedule

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properties and not just the father’s share, the

suit was unsustainable, conflates the scope of

the relief claimed with the maintainability of the

suit. Even if the appellants claimed a larger

relief than they may ultimately be entitled to,

that is not a ground to reject the plaint under

Order VII Rule 11. A plaint claiming relief in

excess of what may be ultimately decreed is not

thereby rendered barred by law.

59. There is a further dimension to the matter

which fortifies the conclusion that the plaint

cannot be rejected at the threshold. To

appreciate this, it is necessary to briefly set out

the scheme of devolution under the H.S. Act as

it stood at the time of the death of the propositus

in 1985.

60. Section 8 of the H.S. Act provides for the rules

of succession governing the devolution of

property of a Hindu male dying intestate. The

provision reads:

“8. General rules of succession in the case of

males.—The property of a male Hindu dying

C.A. @ SLP (C) No.23709/2024 Page 40 of 50

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.”

61. Class I of the Schedule to the Act includes, inter

alia, son, daughter, widow, and mother. The

daughter is a Class I heir and takes

simultaneously with the son and the widow.

There is no dispute that the three appellants are

Class I heirs of the propositus under Section 8

of the Act.

62. The scheme of devolution under the unamended

Act, as it stood in 1985, operated as follows.

Under the main part of the erstwhile Section 6,

the interest of a male Hindu in Mitakshara

coparcenary property devolved, upon his death,

by survivorship upon the surviving members of

the coparcenary. However, the proviso to the

C.A. @ SLP (C) No.23709/2024 Page 41 of 50

erstwhile Section 6 which we have reproduced

in paragraph 44 above, created a statutory

exception: if the deceased had left behind a

female relative specified in Class I of the

Schedule (which includes a daughter), then his

interest in the coparcenary property would

devolve not by survivorship but by testamentary

or intestate succession under the Act. The effect

of the proviso was to take the deceased’s share

out of the survivorship pool and subject it to

devolution under Section 8. A notional partition

was deemed to take place immediately before

the death of the coparcener, under Explanation

1 to the erstwhile Section 6, for the purpose of

ascertaining the share of the deceased.

63. Applying this scheme to the facts of the present

case: the propositus died intestate on

06.03.1985, leaving behind three daughters

(who are Class I heirs) besides others. The

proviso to the erstwhile Section 6 of the H.S. Act

was thereby attracted. A notional partition was

deemed to have taken place immediately before

the death of the propositus. His undivided

C.A. @ SLP (C) No.23709/2024 Page 42 of 50

share, as ascertained by such notional

partition, devolved by intestate succession

under Section 8 on all Class I heirs, including

the three daughters. This right of the daughters

in the father’s share accrued in 1985, under the

unamended Act. It is wholly independent of the

2005 Amendment and predates it by two

decades.

64. Section 6(5) of the H.S. Act, as substituted by

the 2005 Amendment, provides that “nothing

contained in this section shall apply to a

partition, which has been effected before the

20th day of December, 2004.” The words

“nothing contained in this section” refer to the

substituted Section 6, that is, the new

coparcenary rights conferred upon daughters by

Section 6(1). Section 6(5) saves pre-2004

partitions from the retroactive reach of those

new coparcenary rights. It does not, and on its

plain language cannot, purport to extinguish

the pre-existing rights of Class I heirs under

Section 8, which accrued independently of the

2005 Amendment by operation of the proviso to

C.A. @ SLP (C) No.23709/2024 Page 43 of 50

the erstwhile Section 6 read with Section 8. The

saving clause operates within the four corners

of Section 6 and it does not override or abrogate

the independent devolution that occurs under

Section 8 upon the intestate death of a Hindu

male. To hold otherwise would be to give Section

6(5) a reach far beyond its language and

purpose.

65. The 2013 order of the High Court proceeded on

precisely this basis. The operative reasoning of

the High Court in R.F.A. No. 168 of 2009 which

we have reproduced in paragraph 9 above held

that even assuming the daughters are not

coparceners and the partition is valid, the father

having died intestate, the daughters have a

share in the father’s share, and the suit can be

maintained. Vineeta Sharma (supra) does not

touch this reasoning rather it deals with the

coparcenary rights of daughters under the

substituted Section 6(1). It does not address, let

alone alter, the independent right of daughters

as Class I heirs under Section 8 upon the

intestate death of their father. The proposition

C.A. @ SLP (C) No.23709/2024 Page 44 of 50

that upon the intestate death of a Hindu male,

his property devolves on all Class I heirs under

Section 8 including daughters is a settled

proposition of law that predates the 2005

Amendment and has remained undisturbed by

any subsequent decision of this Court.

66. The respondents claim that the appellants failed

to specifically request a claim under Section 8

and therefore have no right or entitlement is

misplaced as the wording of the plaint itself

clearly refutes this argument. The plaint sets up

the case that the propositus died intestate and

that the daughters, as legal heirs, are entitled to

a share in his properties. It claims 1/8th share

for each of the eight legal heirs. The plaint need

not recite the specific section number, it suffices

that the bundle of facts pleaded brings the case

within the ambit of Section 8. As this Court held

in Mayar (H.K.) Ltd. (supra), the question

whether the plaint discloses a cause of action is

to be gathered on the basis of the averments

made in the plaint in its entirety, taking those

averments as correct. The rights of the parties

C.A. @ SLP (C) No.23709/2024 Page 45 of 50

are to be determined by the Court on the basis

of the facts pleaded, not on the nomenclature of

the statutory provision invoked.

67. The suit is, at minimum, maintainable to the

extent of the appellants’ claim in the share of

the propositus, and the plaint cannot be

rejected at the threshold on the ground that

Section 6(5) saves the registered Partition Deed.

Even assuming the partition is valid and is

saved under Section 6(5), a question on which

we express no opinion, the daughters’ right in

the father’s undivided share, which devolved on

them by operation of law in 1985, is not

extinguished by the subsequent partition of

2000. Whether the Partition Deed of 2000 is

binding on the daughters, who were not parties

to it, in respect of the father’s share, is a

question for the Trial Court to adjudicate upon

evidence.

68. Before concluding, we may advert to a further

aspect. The High Court exercised its jurisdiction

under Section 115 of the CPC. The revisional

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jurisdiction is supervisory in nature and limited

in scope; the High Court may interfere only if

the subordinate court has exercised a

jurisdiction not vested in it by law, or has failed

to exercise a jurisdiction so vested, or has acted

in the exercise of its jurisdiction illegally or with

material irregularity. In the present case, the

Trial Court’s order dismissing I.A. No. IV was a

reasoned order correctly applying the principle

of res judicata with reference to the 2013 order

and rightly holding that Section 6(5) does not

bar the suit. In setting aside that order and

rejecting the plaint, the High Court surpassed

its jurisdiction, it not only conducted an

independent and de novo appraisal of the merits

of the dispute, the scope of the Partition Deed

but also the rights of the parties under Section

6(5) at the threshold stage. This exceeded the

permissible scope of revisional jurisdiction

under Section 115 of the CPC.

69. We express no opinion on the merits of the suit,

including the validity of the registered Partition

Deed, the nature and devolution of the suit

C.A. @ SLP (C) No.23709/2024 Page 47 of 50

properties, the effect of the oral partition or the

Palupatti, or the shares of the parties. These are

questions for the Trial Court to adjudicate upon

evidence adduced by the parties. We observe

only that the plaint discloses a cause of action

that is not barred by any provision of law, and

that the rejection of the plaint at the threshold

was not warranted. The appellants’ right to have

their suit adjudicated on the merits cannot be

foreclosed by a second Order VII Rule 11

application that is itself barred by res judicata.

70. We may draw our conclusions as under:

(i) The second application under Order VII

Rule 11 of the CPC (I.A. No. IV, filed

16.12.2021 by the legal representatives of

Defendant No. 4) is barred by the principle

of res judicata, inasmuch as the identical

issue was directly and substantially in

issue in the first Order VII Rule 11

proceedings, was heard and decided by the

High Court in R.F.A. No. 168 of 2009 by its

order dated 31.01.2013, and that order

C.A. @ SLP (C) No.23709/2024 Page 48 of 50

attained finality. The legal representatives

of Defendant No. 4 litigate under the same

title as Defendant Nos. 1 to 3 within the

meaning of Explanation VI to Section 11 of

the CPC, and the decision of this Court in

Vineeta Sharma (supra) does not constitute

a ‘change in law’ relevant to the basis of

the 2013 order.

(ii) Section 6(5) of the H.S. Act is a saving

clause of narrow and strict application. It

does not create a jurisdictional bar to the

institution of a suit for partition. Whether

a valid partition within the meaning of

Section 6(5) has been effected, and

whether such partition is binding on

persons who were not parties to it, are

contested questions of fact and law that

must be adjudicated at trial. The High

Court erred in rejecting the plaint at the

threshold on the basis of Section 6(5).

(iii) The appellants have an independent

right under Section 8 of the H.S. Act, 1956

C.A. @ SLP (C) No.23709/2024 Page 49 of 50

as Class I heirs of the propositus who died

intestate on 06.03.1985. This right

accrued in 1985 by operation of the

proviso to the erstwhile Section 6 read with

Section 8, is independent of the 2005

Amendment, and is unaffected by Section

6(5). The suit is maintainable, at

minimum, to the extent of the appellants’

claim in the share of the propositus.

71. In the light of the foregoing discussion, we are

of the considered view that the High Court

committed an error in allowing the second

application under Order VII Rule 11, which was

barred by res judicata, in holding that Section

6(5) of the Act creates a bar to the institution of

the suit, and in rejecting the plaint at the

threshold without permitting the trial to proceed

on the contested questions of fact and law. The

impugned judgment and order dated

29.08.2024 passed by the High Court of

Karnataka in C.R.P. No. 144 of 2023 is

accordingly set aside. The order dated

15.11.2022 passed by the LXI Additional City

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Civil and Sessions Judge, Bengaluru,

dismissing I.A. No. IV, is restored. The plaint in

O.S. No. 5352/2007 shall stand restored to file.

72. The status quo with respect to the subject

properties, as directed by this Court’s order

dated 25.10.2024, shall continue to remain in

operation until further orders of the Trial Court.

73. The Trial Court shall proceed with the suit

expeditiously and endeavour to conclude the

trial at an early date.

74. The appeal is allowed in the above terms. No

order as to costs.

75. Pending applications, if any, stand disposed of.

.……..………..……………………..J.

[ SANJAY KAROL ]

.……..………..……………………..J.

[ AUGUSTINE GEORGE MASIH ]

NEW DELHI;

MAY 15, 2026.