DELHI HIGH COURT

MS. ILARIA KAPUR VS SH. RAKESH KAPUR & ORS. ON

28 MAY, 2012

CS(OS) 1353/2009  
Date : May 28, 2012           
HON'BLE MS. JUSTICE REVA KHETRAPAL

IA NO.5634/2011 (under Order VII Rule 11 CPC filed by the defendant No.3)
1. By way of this application filed under Order VII Rule 11 CPC, the applicant, the defendant No.3, alleges that the plaint does not disclose any cause of action qua the defendant No.3 and being barred by Hindu Law as well as the provisions contained in the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, the Guardians and Wards Act, 1890, the Specific Relief Act, 1963 and the Benami Transactions (Prohibition) Act, 1988, deserves rejection at the threshold.

2. The aforesaid application is predicated on the contention of the defendant No.3 that she being a woman cannot be a coparcener in the HUF of her husband/sons and, therefore, the properties owned by her cannot be termed as HUF properties belonging to or vesting in the coparcenary comprising of her husband and her sons, as the law does not permit her to blend her properties with the HUF properties. It is asserted by the defendant No.3 that all the properties, owned and possessed by her are protected by the Hindu Women's Right to Property Act, 1937, the Benami Transactions (Prohibition) Act, 1988 and the Hindu Succession Act, 1956 and in view thereof, the suit is barred within the meaning of Rule 11(D) of Order VII of the Code of Civil Procedure.

3. It may be noted that the suit in which the aforesaid application is filed is a suit for partition, rendition of accounts, etc., filed by the plaintiff, minor Hindu female through her next friend, her mother, Ms. Sapna Kapur. The mother of the plaintiff and the defendant NO.1, who is the father of the plaintiff, though have a continuing and subsisting marriage, are involved in multifarious litigation, to which it is not deemed necessary to advert at this juncture. Suffice it to say that there are allegations and counter-allegations. Several orders have been passed in the ongoing litigation between the parties from time to time by various Courts including the Guardianship Court.

4. As delineated in the plaint, the case of the plaintiff is that the plaintiff and the defendants are Hindus governed by Mitakshara law. Late Major Kailash Chander Kapur (Retd.), his wife Ms. Ritu Kapur (the defendant No.3) and their two sons Mr. Rakesh Kapur (defendant NO.1) and Mr. Ravi Kapur (defendant NO.2) constituted a Hindu Undivided Family, which resided together at B-103, Som Vihar Apartment, R.K. Puram, Delhi. Their family business commonly known as "Ace Detectives India" was started in 1984 as a private detective agency and over a period of time other family businesses sprung up including M/s. International Security, M/s. Ace Consultants and M/s. Absolute Security Pvt. Ltd. The joint family acquired several properties in Delhi, Gurgaon and Punjab from the funds generated with the joint labour and efforts of the defendant NOS.1 and 2 and of their late father. Some properties were purchased and acquired in the name of Major Kailash Chander Kapur; others in the names of the defendant NOS.1, 2 and 3. A list of the vast immovable and movable assets of the Hindu Joint Family is filed with the plaint as Annexure-A. 

5. It is further averred in the plaint that on the death of Major Kailash Chander Kapur on 29.06.2007, according to the plaintiff, the share of the defendant NOS.1 to 3 in the joint family properties was 1/4TH each. The 1/4TH share of Major Kailash Chander Kapur, as he died intestate, is also to be divided amongst the defendant NOS.1 to 3, each getting 1/3RD share in the 1/4TH share of Major Kailash Chander Kapur. The plaintiff, who is the minor daughter of the defendant NO.1, thus, claims to have right and interest in the joint family assets by virtue of her birth to the extent of 1/3RD share in the 1/4TH share of the defendant NO.1 in the HUF assets; as well as 1/3RD share in the 1/3RD share of the defendant NO.1 in the 1/4TH share coming to him from his father, i.e., grandfather of the plaintiff. The defendants having denied the plaintiff's right, the present suit for partition has been instituted by her claiming her rightful share in the HUF properties. 

6. In the present application filed by the defendant No.3, it is asserted that the properties set out in the plaint are owned by the defendant No.3, and cannot form subject matter of partition in a suit for partition of properties of the HUF, as property belonging to a female Hindu cannot be termed as the property of the HUF comprising of her husband, sons, grandsons or daughters/granddaughters nor her properties can blend into the HUF properties.

7. In paragraph 11 of the application it is stated that the defendant No.3 is the owner of the following properties:-  

S. No. Property Status
1. B-103, Som Vihar Residing
2. C-1/1682, Vasant Kunj Sold on
30.11.2004
3. B-2/2059, Vasant Kunj Still holding
4. 28, Vasant Apartments Sold on
24.03.2008

5. 271, Vasant Apartments Sold on
14.07.2008
6. Birch Court-38, Nirwana Still holding
7. Aspen Garden-26, Nirwana Still holding 
8. A-3/1502, Uniworld City Sold on
18.12.2006
9. Re-107, EWS, Ridgewood Still holding 
10. C-701, Sun City Still holding it.
11. 801, T-6, Orchid Petals Sold on
09.02.2008

12. 50% share in B-601, Park Still holding View it.

It is urged that just as a grandson cannot seek partition of joint family properties from his grandfather during the lifetime of his father and as long as his father and his brothers, etc. are not separated or are united, a granddaughter (the plaintiff in the instant case) is also not entitled to seek partition of the joint family properties of her grandfather during the lifetime of her father (the defendant NO.1). In any case, there is no legal necessity for the plaintiff to seek partition of her alleged share in the properties of the HUF of the parties and, therefore, it cannot be said that the partition of the properties is likely to be for the benefit of the minor or for the advancement of her interest. It is also asserted in the application that the mother of the plaintiff cannot act as guardian/next friend in respect of the minor's undivided interest in the joint family properties by virtue of the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956. Section 12 of the said Act provides that no guardian be appointed by the Court for the minor's undivided interest in the joint family properties. By virtue of the provisions of Section 8 of the said Act and Section 29 of the Guardian and Wards Act, the guardian can in no case bind a minor by a personal covenant in respect of fluctuating indefinite interest in her alleged joint family properties.

8. Mr. Vinod Tyagi, the learned counsel for the defendant No.3, in the course of hearing of the present application contended that it is settled law that a coparcenary consists of only male members of a family, lineally descended from a common ancestor, who acquire by birth an interest in the HUF properties, and though the daughter of a coparcener has now been held entitled to the coparcenary property by virtue of the Hindu Succession (Amendment) Act, 2005, (with effect from 09.09.2005), the wife or mother of the coparceners/male members of a Joint Hindu Family governed by Mitakshara Law are not included as coparceners in the coparcenary of any HUF as they do not acquire by birth any interest in the HUF properties. The only right given to a female Hindu wife/mother is that on partition of the HUF properties, she gets a share in the joint family property, equal to the share of her husband. Thus, the properties owned by the defendant No.3 cannot be termed as property of the HUF of her husband and their sons/grandsons or daughters/granddaughters. Resultantly, the plaintiff in the present case cannot be permitted to urge that the properties owned and possessed by the defendant No.3 are the properties of the Hindu Undivided Family and the plaintiff being the granddaughter of the defendant No.3 has any right or interest in the said properties.

9. In order to buttress his aforesaid contention, Mr. Tyagi relied upon the decisions rendered in Commissioner of Income-Tax vs. Smt. Pushpa Devi, ILR (1971) 1 Delhi 292; Padma Lal Chand Mirchandani vs. The Commissioner of Income Tax (Delhi II), ILR (1979) Delhi 295 (DB); Smt. Pushpa Devi vs. The Commissioner of Income Tax, New Delhi, AIR 1977 SC 2230 and Raju and Anr. vs. Muthuammal and Ors., AIR 2004 Madras 134 to contend that a female Hindu not being a coparcener cannot blend her separate property with joint family property. Whether that separate property is her absolute property or whether she has a limited estate in that property would make no difference. He pointed out that in Pushpa Devi's case (supra), the Supreme Court relied upon its earlier decision rendered in Mallesappa Bandeppa Desai and Ors. vs. Desai Mallappa and Ors., AIR 1961 SC 1268, and in the said case, Gajendragadkar J. (as His Lordship then was) made the following apposite observations:-

"The rule of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate property of his own may by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property. If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes a part of the joint family estate; in other words, the separate property of a coparcener loses its separate character by reason of the owner's conduct and gets thrown into the common stock of which it becomes a part. This doctrine therefore inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property."

10. Reference was also made by Mr. Tyagi to the recent judgment of the Supreme Court rendered in Gangamma and Ors. vs. G. Nagarathnamma & Ors., 2009 (15) SCC 756, in which the Supreme Court, while discussing the scope and ambit of Section 14 of the Hindu Succession Act, held that Section 14(1) of the Act contemplates that a female Hindu, in the absence of any evidence to the contrary, is the full owner of the properties acquired or possessed by her. Such female Hindu will have all powers and disposition to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. Thus, the rights conferred under Section 14(1) to a Hindu female are not restricted or limited by any rule of Hindu Law. It was also contended by the learned counsel for the defendant No.3 that the present suit is thus barred by the provisions of the Benami Transactions (Prohibition) Act, 1988. In this context, he relied upon the decision rendered in Rameshwar Mistry and Anr. vs. Bebulal Mistry, AIR 1991 Patna 53, wherein it was held:-

"36. An acquisition of property in the name of his wife of a coparcener by the joint family will, in my opinion, constitute a benami transaction and will not be saved under S. 3(2) of the said Act. From a bare perusal of S. 4(3) of the said Act, it is evident that even such a case is not protected thereunder."

11. Reliance was also placed by Mr. Tyagi on the decision of this Court in Smt. Santosh Malik vs. Shri Maharaj Krishan and Anr., 82 (1999) DLT 862, in which it was noted there is now a plethora of precedents to the effect that the Benami Transactions (Prohibition) Act of 1988 would apply, on a construction of the explicit language of Section 4(1) of the Act, to every suit filed after the coming into effect of the Act, even if the transaction is for a period prior to the passing of the Act. The plaint in the said case was rejected as barred under Section 4(1) of the Act.

12. In order to rebut the aforesaid contentions of Mr. Tyagi, the counsel for the plaintiff, Ms. Mala Goel at the outset contended that it is settled law that the provisions of Order VII Rule 11(D) of the Code of Civil Procedure have limited application. It must be shown that the suit is barred under law and such a conclusion must flow from the averments made in the plaint. The issues on the merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. It has been so held by the Supreme Court time and again and specifically reiterated in the decisions of the Supreme Court rendered in Kamala & Ors. vs. K.T. Eshwara Sa & Ors., AIR 2008 SC 3174 and Mayar (H. K.) Ltd. and Ors. vs. Owners & Parties, Vessel M.V. Fortune Express and Ors., (2006) 3 SCC 100.

13. Ms. Goel contended that more than eight decades ago the Lahore High Court in the case of Sanwal Das vs. Kuremal and Ors. reported in AIR 1928 Lahore 224 had laid down that in the case of a Joint Hindu Family, purchase of property in the name of one or other member of the family is immaterial. If once the family is proved to be joint, it is a matter of absolute indifference whether the name of one or the other member of the family appears in a particular document. Ms. Goel contended that the said law holds good till date, unless evidence to the contrary is adduced and it is established otherwise. Referring to paragraph 14 of the written statement, Ms. Goel contended that the defendant No.3 had categorically admitted the existence of the Hindu Undivided Family, but pleaded dissolution thereof on the death of Major Kailash Chander Kapur, on which date the defendant No.3 states there were three assets of the HUF which have been sold by her as she became sole owner and the HUF no longer existed. The case of the plaintiff is that the HUF continues to exist, as there cannot be dissolution as alleged by the defendant No.3. Further, Ms. Goel pointed out that the alternative contention of the defendant No.3 in her written statement is that the properties were the self acquired properties of Major Kailash Chander Kapur and he left a registered Will dated 04.11.2004 in favour of the defendant No.3 and thus, the properties are not HUF properties. Apart from the fact that the aforesaid two pleas taken in the written statement are contradictory to each other and, therefore, incapable of standing together, Ms. Goel contended that in either event, it will be a matter of evidence to be adduced by the parties as to whether the HUF is in existence or not and which of the properties vested in the HUF.

14. Rebutting the contention of Mr. Tyagi that under Mitakshara Law a minor cannot claim share in the HUF properties in her father's lifetime, Ms. Goel contended that it is now settled law that a son or daughter can ask for partition of HUF property from the father during his lifetime. It was so held by the Division Bench of this Court in the case of Nanak Chand and Ors. vs. Chander Kishore and Ors., AIR 1982 Delhi 520 = 22 (1982) DLT 11 SN(DB). Paragraph 14 of the said decision reads as follows:- "(14) The other contention that came up for consideration was whether in the life time of the father, the sons could ask for partition or not. At one time a view was prevalent that in Delhi like Punjab they could not do so. It was based upon some custom, vide Hari Kishan v. Chander Lal & others, AIR 1918 Lahore 291(21) and Sri Ram v. Collector, AIR 1942 Lahore 183. But since the decision of this court of 22-10-1967 in Khushwant Rai v. Dr. Jagmohar Lal RFA 1-D/59 and 24-D of 1959 (22), it is now no more in controversy that the son can ask for partition from the father during his life time. We do not, therefore, propose to dilate any more on this issue."

15. The decision rendered in Nanak Chand's case (supra) was subsequently followed by this Court in the case of Rajinder Kumar Khanna & Ors. vs. R. K. Bajaj & Ors., 1993 (3) Current Civil Cases 127, wherein it was held:- "14. The contention of Mr. Lekhi that the son cannot claim partition during the life time of his father has no force in view of the decision of this court in the case of Nanak Chand and Others v. Chander Kishore, AIR 1982 Delhi 520, wherein a Division Bench of this court held in Delhi a son can ask for partition of the Joint Hindu Family property from the father during his life time "

16. Responding to the contention of Mr. Tyagi that the suit was barred by the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988, Ms. Goel contended that a Joint Hindu Family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. Hindu coparcenary is a narrower body than the joint family and includes only those persons who acquire by birth an interest in the joint or coparcenary property. Section 4 of the Benami Transactions (Prohibition) Act does not apply to HUF properties. In the instant case, the defendant No.3 is a member of the HUF and also she is a housewife. The property even if it is in the name of the defendant No.3 continues to be HUF property and the plaintiff is entitled to her share in the same.

17. In the alternative, Ms. Goel submitted that it is trite that it is only the plaint read as a whole which can be looked into by the Court for the purpose of exercising its powers under Order VII Rule 11 of the Code of Civil Procedure. The learned counsel further urged that as long as the plaintiff is able to prove that the nucleus for acquisition of the said properties came from the HUF funds, the plaintiff must be held entitled to a share in the same, since admittedly it is not the case of the defendant No.3 that the properties are her self-acquired properties or that she inherited the same from her parents' family or that they constitute stridhan. On the contrary, she states that on the death of her husband, the HUF stood dissolved and thereupon she sold three of the HUF properties (vide Para 14 of the written statement). The plea taken by her in the present application that they are her properties is entirely contrary to the plea taken by her in the written statement that on the death of her husband the HUF stood dissolved and the properties devolved upon her. In any case, the veracity of the said pleas can only be gauged after the parties have adduced their respective evidence and the plaint, therefore, cannot be summarily rejected at this stage.

18. Before embarking upon the merits of the respective contentions of the parties, it deserves to be highlighted that the scope and ambit of Order VII Rule 11 of the Code of Civil Procedure is a cabined and limited one. As held in Kamala's case (supra), the conclusion that the suit is barred under any law must be drawn from the averments made in the plaint. Further, for invoking Rule 11(D) of Order VII, no amount of evidence can be looked into. The issues on the merits of the matter which may arise between the parties would not be within the realm of the Court at that stage nor shall form the subject matter of an order under the said provision. In the aforesaid decision which also pertains to a partition suit, it was observed (AIR, page NO.3179):- "Whether any property is available for partition is itself a question of fact."

19. In the case of Kamala (supra), a suit was filed claiming partition in the properties. After the passing of the preliminary decree, no property was available for partition. The properties were possessed by the co-sharers independenty in accordance with the respective shares held by the co-sharers. Yet, the Supreme Court observed that what would be the effect of a partition suit which had not been taken to its logical conclusion by getting the properties partitioned by metes and bounds is a question which cannot be gone into in a proceeding under Order VII, Rule 11(D) of the Code. Whether any property is available for partition is itself a question of fact. Identity of properties which were subject matter of the earlier suit, vis-a-vis, properties which were subsequently acquired and effect thereof was beyond the purview of Order VII, Rule 11(D).

20. Adverting to the contention of the plaintiff that if once the family is proved to be a Joint Hindu Family, it is a matter of absolute indifference whether the name of one or the other member of the family appears in a particular document by which some property is purchased by the joint family, it is the case of the plaintiff that late Major Kailash Chander Kapur, his wife (the defendant No.3) and his two sons (the defendant NOS.1 and 2) constituted a Joint Hindu Family and, as a matter of fact, in the written statement filed by the defendant No.3 the existence of Major Kailash Chander Kapur HUF is admitted. This leaves the Court with the vexed question as to whether the properties held in the individual names of the defendant NO.1, the defendant NO.2 and the defendant No.3 form part and parcel of the said HUF, for, it is the contention of the plaintiff that the aforesaid properties though standing in the individual names of the members of the Hindu Undivided Family were jointly owned by the family, as the said properties were purchased from the funds yielded from the joint family business. This being the contention of the plaintiff and the plaintiff having enclosed a list of Joint Hindu Family properties, nucleus whereof was the generation of funds from the Joint Hindu Family business, the Court is of the opinion that without the parties marshalling their respective evidence on this aspect of the matter it would be impossible to determine which of the aforesaid properties are Joint Hindu Family properties and which are not.

21. Much emphasis has been laid on behalf of the defendant No.3 on the fact that under Hindu Mitakshara Law, a Hindu female may be a member of a joint family but is not a coparcener and cannot blend her separate property with the joint family property. Indubitably, the Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the three generations next to the holder in unbroken male descent (see Mulla's Hindu Law, 14TH Edition, page 262, paragraph 213). A Hindu female is, therefore, not a coparcener, though by virtue of the Hindu Succession (Amendment) Act, 2005, with effect from 09.09.2005, in a Joint Hindu Family governed by the Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. The aforesaid aspects of Hindu Law, however, have no bearing on the present case where undeniably a Hindu Undivided Family was in existence, which acquired huge properties from funds generated from the Hindu Undivided Family business. It is not even the case of the defendant No.3 that she was an earning member of the family or that she had inherited property from her father's side of the family or owned self-acquired properties. Had that been the case, subject to her furnishing proof in this regard, the aforesaid properties could be said to be her absolute properties by virtue of the provision of Section 14 of the Hindu Succession Act, incapable of blending into the properties of the Hindu Undivided Family.

22. The defendant No.3 has in her pleadings, i.e., the written statement filed by her and the present application adopted shifting stands which, though may not have a bearing upon the decision of the present application, nevertheless deserve to be briefly noted. The defendant No.3 states that on the death of her husband there was a dissolution of the HUF comprising of her late husband and the defendant NOS.1 to 3 and thereupon the properties of the HUF devolved upon her, three of which properties she has already sold. The manner in which they devolved upon her is not stated. She further states that the properties mentioned in the plaint had devolved upon her by virtue of a Will left behind by Major Kailash Chander Kapur, though nowhere states that the said Will ever saw the light of the day prior to the filing of the present suit. In the present application, the statement made by her in paragraph 12 simply is that she is the owner of all the twelve properties enumerated in the said paragraph, though in what capacity it is again not clear. Whatever be the position, the Court at this stage needs only to look at the assertions made in the plaint and the assertions made in the plaint are that the said properties are HUF properties and the plaintiff is entitled to a share in the same. As held by the Supreme Court in Kamala's case (supra), whether any property is available for partition is itself a question of fact and must be determined on the anvil of the evidence adduced by the parties. At the stage of consideration of an application under Order VII Rule 11(D), issues on the merit of the matter would not be within the realm of the Court.

23. As regards the contention of the defendant No.3's counsel that the present suit for partition of the properties held in the names of the defendant NOS.1 to 3 is hit by the Benami Transactions (Prohibition) Act, 1988, the said plea is also devoid of substance. A "benami transaction" is defined in Section 2(A), which reads as follows:-

24. "2(A) "Benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person."

25. Section 3 and 4 relate to the prohibition of benami transactions and the prohibition of the right to recover property held benami. For the sake of facility, the said Sections are reproduced hereunder:- "3. Prohibition of benami transactions.- (1) No person shall enter into any benami transaction.

(2) Nothing in sub-section (1) shall apply to -   
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;

(b) the securities held by a -          
(i) depository as a registered owner under sub-section (1) of section 10 of the Depositories Act, 1996;

(ii) participant as an agent of a depository." "4. Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

(3) Nothing in this section shall apply,-  
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." 

26. As noted above, the contention of Mr. Tyagi is that the present action to enforce rights in respect of the properties held benami against the person in whose name the property is held, namely, the defendant No.3 is hit by the aforesaid provisions of the Act. Ms. Goel, on the other hand, relies upon sub-section (3) of Section 4 which is in the nature of an exclusionary clause and excludes from the operation of Section 4 such property as is held by a coparcener in a Hindu Undivided Family for the benefit of the coparceners in the family. The exception taken by Mr. Tyagi to this contention is that the defendant No.3 is not a coparcener and, therefore, the exclusionary clause [Section 4(3) of the Act] would not be applicable to her. He heavily relies upon the decision of the Patna High Court in Rameshwar Mistry's case (supra) and the decision of this Court in the case of Santosh Malik (supra). The decision in Santosh Malik (supra), in my opinion, does not further the case of the defendant No.3 as the effect of Section 4(3) was not considered in the said case, since the plaintiff was not a coparcener. The facts were altogether distinguishable; the parties were siblings and it was claimed in the plaint that each of the parties had a share in the suit property, which however stood in the name of the defendant NO.1. Insofar as Rameshwar Mistry's case (supra) is concerned, the findings rendered in the said case were rendered after a full-blown trial and cannot possibly have any application to the present case at this stage. More so, on account of the fact that in this case the plaintiff alleges that properties standing in the respective names of the defendant NOS.1 and 2 (apart from those in the name of the defendant No.3) are to be taken into consideration for the purpose of partition being HUF properties.

27. It is necessary to pause at this juncture to note that even assuming the Court was inclined to accept the contention of the defendant No.3 that the suit averments relating to her are hit by the Benami Transactions (Prohibition) Act, it is not open to the Court to reject the plaint as it is trite that only a part of a plaint cannot be rejected under Order VII Rule 11. The law has been thus enunciated by the Supreme Court in the case of Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137. The observations made in the said case which are apposite to the present case are reproduced hereunder:-

"As noted supra, Order 7 Rule 11 does not justify rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with striking out pleadings.

28. In Sopan Sukhdeo (supra), the Court, in the context of an application under Clause (d) of Rule 11 of Order VII with regard to the manner in which the plaint is to be read for the purposes of the aforesaid provision of law, laid down the following guidelines:- "15.THERE cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities."

29. In Sunila Wadhwan and Others vs. Perfect Drugs Limited and Anr., 2007 DRJ 497, a learned Single Judge of this Court (Hon'ble Mr. Justice Badar Durrez Ahmed) while dealing with an application under order VII Rule 11 of the Code of Civil procedure filed on behalf of the defendant NO.2 for rejection of the plaint held that even assuming that the suit against the defendant NO.1 WAS not maintainable, the suit was definitely maintainable against the defendant NO.2 and since the plaint could not be rejected in part, the application could not be allowed and the suit would continue against both the defendants.

30. As regards the contention of the defendant No.3 that the plaintiff is not entitled to seek partition of the joint family properties during the lifetime of her father, the following observations made by the Hon'ble Supreme Court in the case of Kakumanu Pedasubhayya vs. Kakumanu Akkamma, AIR 1958 SC 1042, are apposite:

"8. Under the Mitakshara law, the right of a coparcener to share in the joint family properties arises on his birth, and that right carries with it the right to be maintained out of those properties suitably to the status of the family so long as the family is joint and to have a partition and separate possession of his share, should he make a demand for it......

9. The law being thus settled as regards coparceners who are sui juris, the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend. Now, the Hindu law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the court has to be satisfied that the action has been instituted for his benefit. "

31. The further contention raised on behalf of the defendant No.3 that there is no legal necessity for the plaintiff to claim partition and it cannot be said that the partition is likely to be for the benefit of the minor is being stated to be rejected. The plaintiff is a young child who stands displaced in life on account of the tumultuous marriage of her parents. The interests of the plaintiff, needless to state, are of paramount importance and require to be safeguarded.

32. The contention that the plaintiff cannot sue through her mother also appears to have been raised for the sake of raising the same. An application has been filed by the mother of the plaintiff for suing as a next friend being IA No. 9455/2009 in accordance with the provisions of Order XXXII Rule 1 CPC, which is pending as on date. It is trite that the permission sought is not an empty formality which could be given by the Court for the mere asking. Such a safeguard is intended to protect the interest of the minor. It is also not necessary that the mother must seek the permission of the Court to act as a guardian of the minor. She can become the next friend of the minor by virtue of the provisions of Order XXXII Rule 4 of the Code, the only caveat being that her interest is not adverse to that of the minor. In the instant case, the interests of the plaintiff and her mother do not appear to clash in the least, rather the interest of the father and the child clash.

33. In view of the aforesaid, there is no merit in the present application, which is accordingly dismissed.

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