# Km. Deepika Rani v. Vinay Bansal & Ors

- **Citation:** (2025) 9 ILRA 930
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-19
- **Case number:** First Appeal No. 148 of 2017
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-deepika-rani-v-vinay-bansal-ors-54764
- **Pages:** 10

## Headnote

Ajay Singh, Amrendra Nath Singh, Vijay
Prakash

Issue for Consideration
Matter pertains to whether the trial court
committed
material
illegality
in
rejecting
plaintiff's declaratory and injunction suit under
O. VII R. 11(d) of Code of Civil Procedure on
ground that it was barred by Section 6 of Hindu
Succession (Amendment) Act, 2005, without
properly appreciating that disputed property was
self-acquired property of deceased father and
that plaintiff, as his daughter, had legal share
and cause of action to seek declaration and
injunction against fraudulent gift deed.

Headnotes
Code of Civil Procedure, 1908 - O. 7. R. 11
(d) - Hindu Succession Act , 1956 - s. 6 -
The plaintiff - appellant instituted Original
Suit before Civil Judge (Senior Division),
Hapur,
seeking
a
declaration
that
registered
gift
deed
dated 03.09.2016,
allegedly executed by her in favour of her
brother which was null and void, and for
decree of permanent injunction restraining
him from alienating or interfering with her
1/7th share in their late father's residential
property - It was averred that after her
father's death in 2002, property devolved
upon his widow, five daughters, and one son
in equal shares - Plaintiff alleged that
defendant, under the pretext of obtaining a
Power of Attorney and later agreement to
sell, deceitfully procured her signatures and
thumb impressions on documents which
were subsequently registered as gift deed,
without her knowledge or consent, and
without any payment of consideration - Upon
discovering fraud, plaintiff instituted present
suit - Defendant moved application under O.
VII R. 11(d) C.P.C., contending that plaintiff
had no share in property as her father had
died prior to Hindu Succession (Amendment)
Act, 2005, and hence suit was barred u/s 6
thereo - Trial court accepted this plea and
dismissed suit, leading to the instant first
appeal u/s 96 C.P.C. before High Court.
Held: If the disputed property was self acquired
property of plaintiff's father, who died in year
2002, , which according to Section 8 of Hindu
Succession Act,1956 devolved on 7 legal heirs of
her father and being one of legal heir, she also
became owner of 1/7th share in disputed
property, then plaintiff was having 1/7th share
in disputed property, and even if, disputed
property belonged to Mitakshara Joint Hindu
Family, even then, she was a coparcener in that
property and was entitled to same share as her
brother w.e.f. 09.09.2005, i.e. date when
Amendment Act of 2005 became effective -
Plaintiff averred in plaint that she has got no
share in disputed property - It is apparent that
plaintiff was having right in disputed property
on date of filing of suit on 04.10.2016 and as
such, had cause of action to file instant suit - It
is evident that plaintiff, having a 1/7th share in
disputed property, challenged fraudulent gift
deed executed by her brother and sought a
declaration to declare it null and void, along
with decree of permanent injunction restraining
defendant
from
alienating
her
share
or
interfering with her possession, which is not
barred by law - Trial court erred in holding
plaintiff's suit barred u/s 6 of Hindu Succession
(Amendment) Act, 2005. [Paras 32, 33, 35, 36]
(E-13)

Case Law Cited
Prem Kishore & others v. Brahm Prakash &
others, (2023) 19 SCC 244; Kuldeep Singh
Pathania v. Bikram Singh Jaryal, (2017) 5 SCC
345 - referred to.
Vineeta Sharma v. Rakesh Sharma and others,
(2020) 9 SCC 1 (by three Judges) - relied
on

List of Acts
Code of Civil Procedure, 1908; Hindu Succession
Act , 1956; Hindu Succession (Amendment) Act,
2005

List of Keywords
First Appeal u/s 96 C.P.C.; Declaratory suit;
Registered gift deed; Null and void document;
Permanent
injunction;
Disputed
property;
Application under O. 7 R. 11 C.P.C.; Legal heirs;
1/7th share in disputed house; Fraudulently
executed;
Registered
Power
of
Attorney;
Cancellation of Power of Attorney; Agreement to
sell;
Dishonoured
cheque;
Fraud
and
conspiracy; Void document; Mitakshara Joint
Hindu

## Text

930 INDIAN LAW REPORTS ALLAHABAD SERIES
prima-facie residential, commercial and
industrial property as such, on the ground
that some of the disputed property is
agricultural, the whole plaint cannot be
rejected under Order 7 Rule 11 CPC. In
respect of the above property, the plaintiff
is entitled to claim the relief of declaration
and permanent injunction from the civil
court, regarding which the revenue court
has got no jurisdiction.

29. Even the defendants in their
application 38-C under Order 7 Rule 11
CPC, in paragraph 3, mentioned that the
plaintiff never remained in possession of
the
agricultural
and
non-agricultural
properties mentioned in paragraph 4 of the
plaint. It is apparent that even the
defendants accepted that some disputed
property mentioned in the plaint was nonagricultural.

30. In view of the above facts and
the circumstances, it is apparent that the
trial court committed material illegality in
rejecting the whole plaint on the ground,
that the whole disputed property is
agricultural, regarding which no relief can
be granted to the plaintiff by the civil
court and the relief sought by the plaintiff
is barred by section 206 of the U.P.
Revenue Code. It is also apparent that
several properties are involved in the
instant case as such, it was appropriate,
that the trial court decided the whole
issue on merits, after framing the issues
and adducing the evidence of both the
parties. In rejecting the plaint summarily,
the trial court committed a grave error,
which needs to be rectified by this Court,
in exercise of its appellate jurisdiction.
The impugned order is perverse and
unsustainable. Accordingly, this appeal
has merits and is liable to be allowed.

31. This appeal is hereby allowed.
Consequently, the impugned judgment and
decree of the trial court dated 3.12.2022 is
set aside. Defendants application under
Order 7 Rule 11 CPC stands dismissed.
O.S. no. 782 of 2021 is restored to its
original number.

32. The trial court is directed to
decide the suit on merits, in accordance
with law, within six months, without fail,
from the date a certified copy of this order
is communicated to it, without granting
unnecessary adjournment to any side. The
trial court is also directed to hear the suit
day by day. District Judge, Ghaziabad is
directed to monitor the progress of the suit
closely and submit the progress report of
the suit, every 15 days to this Court.

33.
Registrar
compliance
is
directed to communicate a copy of this
order to the District Judge, Ghaziabad
within 24 hours.

34. Interim order, if any, stands
vacated.
----------
(2025) 9 ILRA 930
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 148 of 2017

Km. Deepika Rani ...Appellant
Versus
Vinay Bansal & Ors. ...Respondent

Counsel for the Appellant:
Deepak Singh, Pramod Kumar Srivastava,
Rishi Bhushan Jauhari
9 All. Km. Deepika Rani Vs. Vinay Bansal & Ors.
931
Counsel for the Respondents:
Ajay Singh, Amrendra Nath Singh, Vijay
Prakash

Issue for Consideration
Matter pertains to whether the trial court
committed
material
illegality
in
rejecting
plaintiff's declaratory and injunction suit under
O. VII R. 11(d) of Code of Civil Procedure on
ground that it was barred by Section 6 of Hindu
Succession (Amendment) Act, 2005, without
properly appreciating that disputed property was
self-acquired property of deceased father and
that plaintiff, as his daughter, had legal share
and cause of action to seek declaration and
injunction against fraudulent gift deed.

Headnotes
Code of Civil Procedure, 1908 - O. 7. R. 11
(d) - Hindu Succession Act , 1956 - s. 6 -
The plaintiff - appellant instituted Original
Suit before Civil Judge (Senior Division),
Hapur,
seeking
a
declaration
that
registered
gift
deed
dated 03.09.2016,
allegedly executed by her in favour of her
brother which was null and void, and for
decree of permanent injunction restraining
him from alienating or interfering with her
1/7th share in their late father's residential
property - It was averred that after her
father's death in 2002, property devolved
upon his widow, five daughters, and one son
in equal shares - Plaintiff alleged that
defendant, under the pretext of obtaining a
Power of Attorney and later agreement to
sell, deceitfully procured her signatures and
thumb impressions on documents which
were subsequently registered as gift deed,
without her knowledge or consent, and
without any payment of consideration - Upon
discovering fraud, plaintiff instituted present
suit - Defendant moved application under O.
VII R. 11(d) C.P.C., contending that plaintiff
had no share in property as her father had
died prior to Hindu Succession (Amendment)
Act, 2005, and hence suit was barred u/s 6
thereo - Trial court accepted this plea and
dismissed suit, leading to the instant first
appeal u/s 96 C.P.C. before High Court.
Held: If the disputed property was self acquired
property of plaintiff's father, who died in year
2002, , which according to Section 8 of Hindu
Succession Act,1956 devolved on 7 legal heirs of
her father and being one of legal heir, she also
became owner of 1/7th share in disputed
property, then plaintiff was having 1/7th share
in disputed property, and even if, disputed
property belonged to Mitakshara Joint Hindu
Family, even then, she was a coparcener in that
property and was entitled to same share as her
brother w.e.f. 09.09.2005, i.e. date when
Amendment Act of 2005 became effective -
Plaintiff averred in plaint that she has got no
share in disputed property - It is apparent that
plaintiff was having right in disputed property
on date of filing of suit on 04.10.2016 and as
such, had cause of action to file instant suit - It
is evident that plaintiff, having a 1/7th share in
disputed property, challenged fraudulent gift
deed executed by her brother and sought a
declaration to declare it null and void, along
with decree of permanent injunction restraining
defendant
from
alienating
her
share
or
interfering with her possession, which is not
barred by law - Trial court erred in holding
plaintiff's suit barred u/s 6 of Hindu Succession
(Amendment) Act, 2005. [Paras 32, 33, 35, 36]
(E-13)

Case Law Cited
Prem Kishore & others v. Brahm Prakash &
others, (2023) 19 SCC 244; Kuldeep Singh
Pathania v. Bikram Singh Jaryal, (2017) 5 SCC
345 - referred to.
Vineeta Sharma v. Rakesh Sharma and others,
(2020) 9 SCC 1 (by three Judges) - relied
on

List of Acts
Code of Civil Procedure, 1908; Hindu Succession
Act , 1956; Hindu Succession (Amendment) Act,
2005

List of Keywords
First Appeal u/s 96 C.P.C.; Declaratory suit;
Registered gift deed; Null and void document;
Permanent
injunction;
Disputed
property;
Application under O. 7 R. 11 C.P.C.; Legal heirs;
1/7th share in disputed house; Fraudulently
executed;
Registered
Power
of
Attorney;
Cancellation of Power of Attorney; Agreement to
sell;
Dishonoured
cheque;
Fraud
and
conspiracy; Void document; Mitakshara Joint
Hindu Family; Self-acquired property; Section 6
932 INDIAN LAW REPORTS ALLAHABAD SERIES
of Hindu Succession Act; Hindu Succession
(Amendment) Act, 2005; Coparcenary rights;
Devolution
of
interest;
Perverse
finding;
Perverse
and
illegal;
Material
illegality;
Unsustainable in eye of law; Plaint discloses a
cause of action; Suit barred by law.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. -
148 of 2017
From
the
Judgment
and
Decree
dated
29.11.2016 of the Court of Ist Additional Civil
Judge (Senior Division), Hapur in O.S. No.155 of
2016

Appearances for Parties
Advs. for the Appellant:
Deepak Singh, Pramod Kumar Srivastava, Rishi
Bhushan Jauhari

Advs. for the Respondent:
Ajay Singh, Amrendra Nath Singh, Vijay Prakash

(Delivered by Hon'ble Sandeep Jain, J.)

 1. The instant first appeal under
Section 96 C.P.C. has been preferred by the
plaintiff-appellant against the impugned
judgment and decree dated 29.11.2016
passed by the Court of Ist Additional Civil
Judge (Senior Division), Hapur in O.S.
No.155 of 2016, Km. Deepika Rani vs.
Vinay Bansal, whereby her declaratory suit
for declaring that the alleged registered gift
deed
dated
03.09.2016,
which
was
fraudulently got executed from her by the
defendant, be declared null and void and
also for restraining the defendant by a
decree of permanent injunction from
alienating the disputed property of the
above gift deed and for interfering in her
peaceful
possession
of
the
disputed
property,
has
been
rejected
on
an
application under Order 7 Rule 11 C.P.C.
of the defendant.

2. Factual matrix is that the plaintiffappellant, Km. Deepika Rani and the
defendant-respondent, Vinay Bansal are real
sister and brother. The plaintiff filed O.S.
No.155 of 2016 in the trial court with the
averments that her father, Mahaveer Prasad
died in the year 2002, leaving behind his wife
Smt. Chandrawati, daughters Smt. Sushma,
Smt. Neeta Garg, Smt. Rama Singh, Km.
Deepika(plaintiff), Smt. Priti Garg and son
Vinay Bansal(defendant).

3. She further averred that the
disputed house having municipal No.1815/992 and 992(1-9) is a two storeyed house
in an area of 1200 sq. yard, in which, on the
ground floor in an area of 125.46 sq. meter,
five rooms and one stair case are constructed
and on the first floor in an area of 125.46 sq.
meter, five more rooms are constructed, the
boundaries of which were mentioned at the
end of the plaint, which was situated in
Mohalla Sarai Chand Khan, Friganj Road,
Hapur.

4. She further averred that her and
defendants father Late Mahaveer Prasad
was the owner in possession of the above
house, who died in the year 2002 and after
his death, her mother, sisters and brother, all
being legal heirs became the co-owners of the
disputed house, in which, each was having
1/7th share

5. She further averred that the
marriage of her other sisters have been
solemnized, she is still unmarried, the
defendant is her real brother.

6. She further averred that she
wanted to sell her 1/7th share in the
disputed house, which was valued in access
of
Rs.2
crores
and
from
the
sale
consideration, she wanted to establish an
Ashram for her salvation and public benefit
because she decided to remain unmarried
for her whole life.
9 All. Km. Deepika Rani Vs. Vinay Bansal & Ors.
933
7. She further submitted that she
was also giving training of meditation and,
as such, for a week or two weeks, she
visited Osho Meditation Centre, Rishikesh,
where she worked as meditation facilitator.

8. She further averred that when
she expressed her intention to her mother
and sisters for selling her share in the
disputed house, then the defendant assured
her that, if she sold her 1/7th share
separately, then she will not get proper
value of her share, as such, she should
execute a Power of Attorney of her share in
favour of the defendant, so he could by
selling the whole property get proper value
of it.

9. The plaintiff averred that being
convinced by the above submission of the
defendant, she executed registered Power
of Attorney in favour of the defendant on
17.08.2016 and the defendant assured her
that he will pay Rs.10 lacs within a week,
but when this amount was not paid, then
she had cancelled the registered Power of
Attorney executed in favour of the
defendant on 31.08.2016.

10. She further averred that after
she got cancelled the registered Power of
Attorney on 31.08.2016 in favour of the
defendant, her mother, other sisters and
defendant once again held consultations
and on 03.09.2016, it was once again
agreed that the plaintiff will execute an
agreement to sell of her 1/7th share in the
disputed property, for which, the defendant
will pay her Rs.10 lacs as earnest money
within a week and in accordance with this
agreement, she was taken by the defendant
on 03.09.2016 to Tehsil Compound, Hapur
where in the presence of defendants friend
Nitin Saraswat, Sudhir Agarwal and
defendants female friend Km. Monika
Bisla, by practising fraud and hatching
conspiracy to usurp her share in the
disputed property, in the garb of executing
an agreement to sell, the defendant got her
signature and thumb impression affixed on
some papers and got them registered.

11. She specifically averred that
the above documents were neither read
over to her nor explained, because it was
submitted to her that since the Registry
Office is crowded, as such, she should read
those documents subsequently and on this
submission, she affixed her signature and
thumb impression on the above documents
without reading them, in which her mother
Smt. Chandrawati and real sister Smt. Priti
Garg were attesting witnesses.

12. She further averred that the
defendant gave her post dated cheque
no.000003 on 03.09.2016 for Rs.10 lacs
drawn on HDFC Bank and when the
cheque was deposited by her in her bank
account in Punjab National Bank, Raj
Nagar Branch, Ghaziabad, then it was
dishonoured by the defendants bank with
an endorsement that the defendant stopped
payment of the cheque and subsequently on
19.09.2016, the dishonoured cheque was
returned to her.

13. The plaintiff further averred
that subsequently on inquiry, she became
aware that on 03.09.2016 on the garb of
executing agreement to sell, the defendant
has got executed a registered gift deed of
her 1/7th share in the disputed property, as
such, the defendant has become the owner
of her share in the disputed property
without paying any consideration to her
and by practising fraud upon her.

14. She further averred that on
becoming aware of the above fraud
934 INDIAN LAW REPORTS ALLAHABAD SERIES
practised by the defendant on her, she
informed her family members and relatives
and informed them about the fraud
committed by the defendant, but they
refused to help her in this matter, as such,
the plaintiff filed the suit for the following
reliefs:-

 (i). By a declaratory decree of the
court granted in her favour against the
defendant, it be declared that the registered
gift deed dated 03.09.2016 with respect to
her 1/7th share in house No.18-15/992 and
992(1-9) is a null and void document.

 (ii). By decree of permanent
injunction granted in her favour against the
defendant, the defendant be restrained from
alienating,
transferring
the
disputed
property and also from interfering in the
peaceful possession of the plaintiff, with
respect to her 1/7th share in the disputed
property.

15. The defendant, Vinay Bansal
moved an application under Order 7 Rule
11 (d) C.P.C. on the ground that the
plaintiff has got no share in the disputed
property in accordance with Section 6 of
the Hindu Succession Act, as amended in
the year 2005. The suit is barred by Section
6 of the above Act, as such, the plaintiffs
suit be rejected under Order 7 Rule 11 (d)
C.P.C.

16. The plaintiff opposed the above
application of the defendant by filing her
objections, in which she averred that she
only claimed the relief of declaring the gift
deed dated 03.09.2016 as null and void and
also the relief of permanent injunction,
regarding which she has got cause of action
and she has also paid court fees, as such,
her suit is not barred under Order 7 Rule 11
CPC. She further averred that her suit was
also not barred under Section 6 of the
Hindu Succession Act. The defendant had
not filed his written statement and he
wanted to deliberately delay the disposal of
the suit. With these submissions, it was
prayed that the defendants application be
rejected.

17. The trial court by the impugned
order
dated
29.11.2016
allowed
the
defendants application under Order 7 Rule
11 CPC on the ground that the plaintiffs
father died in the year 2002 and the
plaintiff averred that being the legal heir of
her father, she became owner of 1/7 share
in the disputed property but since, her
father died before the enactment of the
Hindu Succession (Amendment) Act 2005,
as such, she had no right in the disputed
property because the daughters were given
right in the Mitakshara Joint Hindu Family
property
only
through
the
above
Amendment
Act
and
prior
to
the
enforcement of the Act, daughter had no
right in the property of the Mitakshara Joint
Hindu Family. The trial court concluded
that since the plaintiffs father died before
the enforcement of the above Act of 2005,
as such, on the demise of the plaintiffs
father in the year 2002, she did not inherit
any right in the disputed property.

18. The trial Court also concluded
that since the alleged gift deed was
executed regarding the plaintiffs 1/7th
share in the disputed property, in which,
legally the plaintiff had no share, as such,
the alleged gift deed was a void document
on the basis of which the defendant had
acquired no right, title, interest in the
disputed property and on the basis of the
alleged gift deed, the plaintiff has also got
no cause of action to file the instant suit.
The trial court concluded that since the
plaintiff had no share whatsoever in the
9 All. Km. Deepika Rani Vs. Vinay Bansal & Ors.
935
disputed property, as such, she had no right
to get declared any document, void
regarding her share in the disputed
property, because it would be a futile
exercise. With this reasoning, the trial court
dismissed the plaintiffs suit being barred
under Order 7 Rule 11 CPC, aggrieved
against which, the plaintiff filed the instant
First Appeal under Section 96 CPC.

19.
Learned
counsel
for
the
plaintiff-appellant
submitted
that
the
impugned order of the trial court is wholly
perverse and illegal because from the
perusal of the plaint averments, it is clear
that the disputed property was the self
acquired property of the plaintiffs father
late Mahavir Prasad. The disputed property
was never a property of the Mitakshara
Joint Hindu Family, as such, the provisions
of Section 6 of the Hindu Succession
(Amendment) Act, 2005 never applied on
the disputed property. He further submitted
that since the disputed property was the
property of plaintiffs father Mahavir
Prasad, as such, on his demise, the property
devolved on his seven heirs equally, in
which, the plaintiff had 1/7th share and
regarding this share, the defendant had got
fraudulently executed a gift deed from the
plaintiff, in the garb of executing an
agreement to sell.

20.
Learned
counsel
for
the
appellant further submitted that the plaint
averments specifically stated, that a fraud
was practiced by the defendant upon the
plaintiff by getting the alleged gift deed
executed in his favour. The plaintiff has got
cause of action to file the instant suit. Only
after trial, it will be known whether the
averments of the plaintiff are true or false
and at the initial stage itself, the plaint
cannot be outrightly rejected. With these
submissions, it was prayed that the appeal
be allowed and the suit be restored to its
original number and the trial court be
directed to decide the case on merits after
hearing both the parties, in accordance with
law.

21. Per contra, learned counsel for
the defendant-respondent submitted that the
order of the trial court is perfectly legal
because the plaintiff was not having any
share in the disputed property of her
deceased father, as such, even if, it is
assumed that the defendant had got
fraudulently executed the alleged gift deed
in his favour, even then, no right was
conferred on the defendant on the basis of
that gift deed which was a void document
and since the plaintiff was not having any
share in the disputed property, she is also
not entitled to the relief of permanent
injunction.
Learned
counsel
for
the
respondent submitted that in view of these
facts, the trial court had not committed any
illegality in dismissing the plaintiffs suit
under Order 7 Rule 11 CPC.

22. I have learned counsel for the
parties and perused the record.

23. The Apex Court in the case of
Prem Kishore & others Vs. Brahm Prakash
& others, (2023) 19 SCC 244 has held that
for deciding an application under Order 7
Rule 11 (d) CPC, the following principles
are to be followed:-

 (i) To reject a plaint on the
ground that the suit is barred by any law,
only the averments in the plaint will have
to be referred to;

 (ii) The defence made by the
defendant in the suit must not be
considered while deciding the merits of the
application;
936 INDIAN LAW REPORTS ALLAHABAD SERIES
24. The Apex Court in the case
of Kuldeep Singh Pathania vs Bikram
Singh Jaryal, (2017) 5 SCC 345 has
held that Court has to read the entire
plaint as a whole to find out whether it
discloses a cause of action or not. If the
plaint discloses cause of action, then it
cannot be rejected under Order 7 Rule
11
(a)
CPC.
Whether
the
plaint
discloses a cause of action, is a question
of fact, which has to be gathered on the
basis of the plaint averments taking
them to be true. As long as plaint
discloses a cause of action, mere fact
that plaintiff may not succeed in suit
cannot be a ground for rejection of the
plaint.

25. Section 6 of the Hindu
Succession Act, 1956 as is substituted by
Act 39 of 2005 (w.e.f. 09.09.2005) reads as
under:-

 Section 6- Devolution of interest
in coparcenary property-(1) On and from
the
commencement
of
the
Hindu
Succession (Amendment) Act, 2005 (39 of
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 the same manner as the
son;

 (b) have the same rights in the
coparcenery property as she would have
had if she had been a son;

 (c) be subject to the same
liabilities in respect of the said coparcenery
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 sub-section shall affect or invalidate
any disposition or alienation including any
partition or testamentary disposition of
property which had taken place before the
20th day of December, 2004.

 (2) Any property to which a
female Hindu becomes entitled by virtue of
sub-section (1) shall be held by her with the
incidents of coparcenary ownership and
shall be regarded, notwithstanding anything
contained in this Act or any other law for
the time being in force, as property capable
of being disposed of by her by testamentary
disposition.

 (3) Where a Hindu dies after the
commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), his
interest in the property of a Joint Hindu
family governed by the Mitakshara law,
shall devolve by testamentary or intestate
succession, as the case may be, under this
Act and not by survivorship, and the
coparcenery property shall be deemed to
have been divided as if a partition had
taken place and-

 (a) the daughter is allotted the
same share as is allotted to a son;

 (b) the share of the pre-deceased
son or a pre-deceased daughter, as they
would have got had they been alive at the
time of partition, shall be allotted to the
surviving child of such pre-deceased son or
of such pre-deceased daughter; and

 (c) the share of the pre-deceased
child of a pre-deceased son or of a predeceased daughter, as such child would
9 All. Km. Deepika Rani Vs. Vinay Bansal & Ors.
937
have got had he or she been alive at the
time of the partition, shall be allotted to the
child of such pre-deceased child of the predeceased son or a pre-deceased daughter, as
the case may be.

 Explanation.--For the purposes of
this sub-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.

 (4) After the commencement of
the Hindu Succession (Amendment) Act,
2005 (39 of 2005), no court shall recognise
any right to proceed against a son,
grandson
or
great-grandson
for
the
recovery of any debt due from his father,
grandfather or great-grandfather solely on
the ground of the pious obligation under the
Hindu law, of such son, grandson or greatgrandson to discharge any such debt:

 Provided that in the case of any
debt contracted before the commencement
of the Hindu Succession (Amendment) Act,
2005 (39 of 2005), nothing contained in
this sub-section shall affect

 (a) the right of any creditor to
proceed against the son, grandson or greatgrandson, as the case may be; or

 (b) any alienation made in respect
of or in satisfaction of, any such debt, and
any such right or alienation shall be
enforceable under the rule of pious
obligation in the same manner and to the
same extent as it would have been
enforceable as if the Hindu Succession
(Amendment) Act, 2005 (39 of 2005) had
not been enacted.
 Explanation--For the purposes of
clause (a), the expression son, grandson or
great-grandson shall be deemed to refer to
the son, grandson or great-grandson, as the
case may be, who was born or adopted
prior to the commencement of the Hindu
Succession (Amendment) Act, 2005 (39 of
2005).

 (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.

26. The Apex Court in the Case of
Vineeta Sharma vs. Rakesh Sharma and
others, (2020) 9 SCC 1 (by three Judges),
has held that daughter born before date of
enforcement of the 2005 Amendment Act
has got same rights as daughter born on or
after the amendment. It was held that if a
daughter is alive on the date of enforcement
of Amendment Act, 2005, w.e.f. 09.09.2005,
she becomes a coparcener w.e.f. the date of
Amendment Act, 2005 (i.e. 09.09.2005)
irrespective of whether she was born before
the said amendment. It was further held that
provisions in substituted Section 6 of the Act
confer status of coparcener on daughter born
before or after the amendment in the same
manner as son with same rights and
liabilities. It was further held that rights under
substituted Section 6 can be claimed by
daughter born prior to the amendment w.e.f.
date of amendment with saving of post
transactions as provided in proviso to Section
6 (1) read with Section 6 (5) of the Hindu
Succession Act.
938 INDIAN LAW REPORTS ALLAHABAD SERIES
27. It was further held by the Apex
Court that since right in coparcenery of
daughter under the substituted Section 6 is
by birth, it is not at all necessary that father
of daughter should be living as on date of
coming into force of the Amendment Act.

28. From the above law laid down
by the Apex Court in the case of Vineeta
Sharma (supra), it is evident that if a
daughter is born before the enforcement of
2005 Amendment Act (w.e.f. 09.09.2005),
even then, she has got right in the
coparcenery property w.e.f. 09.09.2005 and
it is also evident that, she has got the same
rights in the same manner as a son. It is
also apparent that it is not essential that her
father should be alive on the date of
enforcement of the Amendment Act i.e.
09.09.2005.

29. From the averments of the
plaint, it is apparent that nowhere the
plaintiff has claimed that she is a
coparcener in the Mitakshara Hindu Joint
Family of his father Mahaveer Prasad.

30. From the plaint averments, it is
apparent that the disputed property was the
self-acquired property of her late father
Mahaveer Prasad, who died in the year
2002, which according to Section 8 of the
Hindu Succession Act,1956 devolved on
the 7 legal heirs of her father and being one
of the legal heir, she also became owner of
the 1/7th share in the disputed property.
Even if, for the sake of argument, it is
assumed that the disputed property was the
property of Mitakshara Joint Hindu Family,
even then, in the light of the law laid down
by the Apex Court in the case of Vineeta
Sharma (supra), she was having equal right
in the coparcenery property, as her brother.
The Apex Court has very clearly held that
from 09.09.2005, i.e the date when the
Amendment Act of 2005, became effective, a
daughter who was alive on this date, became
a coparcener, irrespective of whether she was
born before the said Amendment.

31. In view of this pronouncement of
law by the Apex Court, the finding of the trial
court that the plaintiff was not having any
share in the disputed property, on the demise
of her father, is totally erroneous and perverse
finding.

32. If the disputed property was the
self acquired property of plaintiffs father
Mahaveer Prasad, then the plaintiff was
having 1/7th share in the disputed property,
and even if, the disputed property belonged to
Mitakshara Joint Hindu Family, even then,
she was a coparcener in that property and was
entitled to the same share as her brother w.e.f.
09.09.2005,
i.e.
the
date
when
the
Amendment Act of 2005 became effective.
The plaintiff has nowhere averred in the
plaint that she has got no share in the disputed
property.

33. It is apparent that the plaintiff
was having right in the disputed property on
the date of the filing of the suit on 04.10.2016
and as such, had cause of action to file the
instant suit.

34. It is apparent that the plaintiff
alleged that her brother had got executed
fraudulently a gift deed from her, in the garb
of executing an agreement to sell, which she
claimed to be a void document. It is well
settled that while deciding Order 7 Rule 11
C.P.C. application, the Court is not to
examine the plaint case on merits whether the
plaintiff is going to succeed or not, and only
at this stage, the plaint averments are to be
read to ascertain whether any cause of action
has arisen to the plaintiff to file the instant
suit.
9 All. Deen Dayal Pipraiya & Ors. Vs. Ram Sharan
939
35. In view of the above facts, it is
apparent that plaintiff was having a share in
the disputed property regarding which her
brother had fraudulently executed a gift
deed in his favour regarding which the
plaintiff had sought relief of declaration for
declaring the alleged gift deed to be a null
and void document and for restraining the
defendant by a decree of permanent
injunction from alienating her 1/7th share
in the disputed property and for restraining
him from interfering in the peaceful
possession of the disputed property, which
cannot be said to be barred by any law.

36. Certainly, the trial court erred
in concluding that the plaintiffs suit was
barred by the provisions of Section 6 of the
Hindu Succession Act, as amended in the
year 2005

37. In view of the above, the
impugned judgment of the trial court is
wholly perverse, which needs to be set
aside by this Court.

38. Accordingly, the instant appeal
is allowed and the impugned judgment and
decree dated 29.11.2016 passed by the
Court of Ist Additional Civil Judge (Senior
Division), Hapur in O.S. No.155 of 2016,
Km. Deepika Rani vs. Vinay Bansal, is set
aside and the original suit is restored to its
original number.

39. The trial court is directed to
decide the suit as expeditiously as possible,
in accordance with law.

40.
Parties
shall
bear
their
respective costs. Office is directed to
prepare the decree accordingly.

41. Interim order, if any, stands
vacated.
42. All the pending applications, if
any, stand disposed of.

43. Office is directed to send back
the original trial court record, if received,
forthwith.
----------
(2025) 9 ILRA 939
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 678 of 2018

Deen Dayal Pipraiya & Ors. ...Appellants
Versus
Ram Sharan ...Respondents

Counsel for the Appellants:
Sanjay Agarwal

Counsel for the Respondent:
Krishna Dutt Tiwari

Issue for Consideration
Matter pertains to whether the trial court was
justified in dismissing the plaintiff's suit under O.
VII R. 11(d) of Code of Civil Procedure on the
ground that it was barred by res judicata u/s 11
C.P.C., without examining the pleadings and
evidence of the parties, and merely on the basis
of the defendant's application and documents.

Headnotes
Code of Civil Procedure, 1908 - s. 11, O. 7.
R. 11 (d) - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - s. 331 - Specific
Relief Act, 1963 - ss. 34, 38, 41 - Plaintiff -
appellant acting as Manager of Sri Thakur
Maithli Raman Jee Maharaj, Virajman
Mandir Kunj, a private temple, instituted
Original
Suit
seeking
a
decree
of
permanent
injunction
restraining
defendant, Ram Sharan, from selling,
transferring,
or
interfering
with
the
temple property - It was pleaded that