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In a suit for partition, if the defence is taken that there has been a partition, the said defence must be tested on evidence- Madras High Court

“I am unable to concur with the contention of the learned counsel. The plaintiff has come forward with the suit for partition and he has raised the contention that the earlier partition deed is sham and nominal.” These were stated by the single bench of Honourable Mr. Justice R. Subramanian in the case of D.Muthunarayanan v. T.D.Ravindran & Ors. (CRP Nos.2754 & 2755 of 2021).

Here in the present case, the suit is being resisted by the defendants, who are his father and siblings contending that there was a partition in the family and the plaintiff being a party to the same is not entitled to maintain the present suit for partition. Even though the plaintiff did not disclose the said partition in the original plaint. In his counter to the application filed under Order 7 Rule 11 of CPC, the plaintiff had contended that the partition of the year 1996 was not acted upon and it is sham and nominal document created for the purpose of another suit. The trial Court dismissed the application on the conclusion that the issue as to whether there was a partition or not, will have to be decided by the Court only after evidence is let in and the same cannot be a ground for rejection under Order 7 Rule 11 of CPC.

The single bench of Honourable Mr. Justice R. Subramanian in the case said that I am unable to concur with the contention of the learned counsel. The plaintiff has come forward with the suit for partition and he has raised the contention that the earlier partition deed is sham and nominal. The question whether the earlier partition deed is valid or not will have to be decided in the suit after evidence is let in. The validity or otherwise of the document cannot be a subject matter of rejection of the plaint under Order 7 Rule 11. Hence, I am unable to find fault with the trial Court for having dismissed the application.

The same reasoning would apply to the Revision under Article 227 of the Constitution of India seeking striking off the plaint. In a suit for partition, if the defence is taken that there has been a partition, the said defence has to be tested on evidence. The Court cannot reject the plaint on the basis of the defence under Order 7 Rule 11. Hence, both the revisions fail and they are accordingly dismissed. Considering the fact that the suit is of the year 2018, the trial Court is required to dispose of the suit on or before 30.04.2022. No costs. Consequently, the connected miscellaneous petitions are closed.

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Judgement reviewed by Himanshu Ranjan

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