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.’{Para 35}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2026
(ARISING OUT OF SLP (C) NO.23709 OF 2024)
B.S. LALITHA AND OTHERS Vs BHUVANESH AND OTHERS
Author: AUGUSTINE GEORGE MASIH, J.
Citation: 2026 INSC 499.
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
C.A. @ SLP (C) No.23709/2024 Page 2 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 3 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 4 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 5 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 6 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 7 of 50
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.
C.A. @ SLP (C) No.23709/2024 Page 8 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 9 of 50
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.
C.A. @ SLP (C) No.23709/2024 Page 10 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 11 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 18 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 19 of 50
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-Ã -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
C.A. @ SLP (C) No.23709/2024 Page 32 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 34 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 35 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 36 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 39 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 46 of 50
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
C.A. @ SLP (C) No.23709/2024 Page 50 of 50
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.
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