Sham partition award and decree allegations can sustain a fresh partition suit without prior cancellation.

A plaint alleging that an earlier partition award and decree were sham, collusive, and intended only for a collateral tax purpose disclosed a triable cause of action, so rejection under Order VII Rule 11 CPC was not justified. The Court held that, on the plaint averments, the earlier proceedings could be treated as not truly severing the joint family status, and the plaintiff could seek partition without first obtaining cancellation. Limitation also could not be decided against the plaint at this stage, because the pleaded accrual of the right to sue arose on denial or threat to the plaintiff's rights, attracting Article 113 and requiring evidence. The suit was therefore not barred by the Arbitration Act, 1940.

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Issues: (i) whether the plaint disclosed a cause of action and the suit for partition was maintainable despite the earlier award and decree; (ii) whether the suit was barred by limitation; (iii) whether the suit was barred by Sections 32 and 33 of the Arbitration Act, 1940 and whether the plaintiff was bound to seek cancellation of the earlier award and decree.

Issue (i): whether the plaint disclosed a cause of action and the suit for partition was maintainable despite the earlier award and decree.

Analysis: The plaint proceeded on the footing that the earlier partition proceedings, award, and decree were merely paper transactions, sham, collusive, and intended only to reduce tax liabilities, while the joint Hindu family status and properties continued to subsist. On an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, the Court was required to accept the plaint averments as true for the purpose of deciding whether a triable cause of action existed. The allegations, if proved, would support a plea that the earlier decree did not truly disrupt the joint family or extinguish the plaintiff's rights.

Conclusion: The plaint disclosed a cause of action and the suit was maintainable; rejection of the plaint on this ground was not warranted.

Issue (ii): whether the suit was barred by limitation.

Analysis: The plaintiff pleaded that he became aware of the real nature of the earlier proceedings only in 1984 and that the threat to his asserted rights arose when he was sought to be excluded from the joint family properties and businesses. In such a case, the right to sue would accrue when the right was denied or threatened, and the Court held that the question could not be conclusively decided without evidence. On the plaint averments, Article 113 of the Limitation Act, 1963 would apply, and the suit filed in 1986 could not be said to be barred on its face.

Conclusion: The suit was not shown to be barred by limitation at the stage of Order VII Rule 11.

Issue (iii): whether the suit was barred by Sections 32 and 33 of the Arbitration Act, 1940 and whether the plaintiff was bound to seek cancellation of the earlier award and decree.

Analysis: The Court treated the plaintiff's case as one challenging the factual existence and binding effect of a sham and collusive award and decree alleged to have been obtained for a collateral purpose. Such a challenge was held to be independent of a direct attack on the award itself and therefore outside the mischief of Sections 32 and 33 of the Arbitration Act, 1940. The Court further held that where a decree is alleged to be void, sham, or nominal, the affected party may ignore it and sue for the substantive relief without first seeking cancellation, especially where the case is that the document never had real legal effect between the parties.

Conclusion: The suit was not barred by Sections 32 and 33 of the Arbitration Act, 1940, and no prior prayer for cancellation of the award or decree was necessary.

Final Conclusion: The plaint could not be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908, and the applications seeking rejection were dismissed, leaving the parties to establish their respective cases in trial.

Ratio Decidendi: A plaint alleging that an earlier award and decree were sham, collusive, and never intended to operate between the parties cannot be rejected under Order VII Rule 11 if the pleaded facts disclose a cause of action; such a challenge may be pursued by an independent suit for substantive relief without first seeking cancellation, and limitation must be judged from the pleaded accrual of the right to sue.

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