Civil Procedure Code, 1908
Order 7 Rule 11—Rejection of plaint—Cause of action—Non-disclosure of—Failure to disclose necessary facts—Suit for partition—Entire case of the plaintiff appears to be premised on the assumption that the suit property is his ancestral property, wherein lies his vested right—By operation of provisions under Sec. 8 of Hindu Succession Act, the property of the father who dies intestate devolves on his son in his individual capacity and not as Karta of his own family—So long as the father is alive, the son cannot claim any right in his father’s property, since Sec. 8 of the Hindu Succession Act excludes the concept of survivorship or birthright in the case of intestate succession—A cause of action in favour of the son would arise only upon the father's death, intestate, when succession actually opens under Sec. 8 of the Hindu Succession Act—Suit property in the hands of first defendant is his separate/self-acquired property—Plaint discloses that the plaintiff's father, first defendant, is alive—Plaintiff's claim qua his entitlement to partition and declaration of ownership, is illusory and devoid of cause of action—Foundational facts to claim relief from court are non-existent, which is the basic test of a cause of action—Plaint disclose no subsisting cause of action—Plaint liable to be rejected—Application allowed. [Hindu Succession Act, 1956, Sections 8 & 15]
[Paras 25 to 34]