Partition suit by my wife against brothers . Claimed share in two houses ,one agriculture land, rendition of accounts in two partnership firms,share in Pvt Ltd family owned company,and share in one house purchased in name of mother by her late father. Reply received one house though in his name but acquired by income of firm,second house in name ofbrother, share in partnership firms can not be claimed in partition suit, Pvt Ltd company not doing any business now ,house in name of mother acquired by income of mother . Agriculture land too though in his name but acquired by income of firm.Fact is first house was purchased by him with his income, second house too in his name as per Jaipur municipal corporation house tax website, No house or agriculture land shown in balance sheet of firm available with us ,firm dissolved on death but continuing with same Name as per new deed entered by surviving partners inspite of no such provision in previous partnership deed. Also submitted rejection petition on ground of fixed court fee paid but without claiming outser or exclusion from properties. Basically telling no self acquired properties. As per me settled law is each co owner is presumed to be in possession of property even if he is not in possession. How to go further in this case.
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Sister has no share in house purchased by brother with his own income
2) on mother demise daughter can claim share in property standing in her name
3) in deciding partition suit source of income for purchase of property is concerned
4) court fees has to be paid based on market value of her share in property
1. Do not worry as one the property is prima facie shown to be joint one or ancestral property then onus to disprove this lies on the person who claims it to be self acquired.
2. You can claim share in the business of firm but not in the company for which you will have to file case in NCLT.
3. The business run b the brothers using the same trade name makes them liable to share profit on death of their father.
4. The contents of plaint and written statement if shared would have helped me to advise further.
1. Being in possession or not claiming possession is not equal to not having any share.
2. So possession is not necessary to claim legal share.
3. Was the late father partner in partnership firm?
4. If yes then the daughter will have a claim in the firm as well after the demise of father.
5. How were the properties transferred to the name of the brother? Has he annexed any documentary evidence to his reply? If not then ask for inspection and providing copies of the deeds by which brother acquired those properties ? This is to check if the father has consented to such acquisition.
6. Why can't one not claim any share in a partnership firm? If the father was a partner in the firm then upon his demise the father's share in the firm would go to his legal heirs and not to surviving partners!!! Ask the brother to produce the partnership deed on basis of which he is making such a claim!
It is their reply version.
You should not be deterred by their reply.
You should concentrate on your issues and prosecute the case on the basis of facts, merits and documentary evidences in your side
Let the court decide about the fate.
Please remember that if you have not filed any case under company law agaisnt the firm and seeking shades of the deceased father/partner and also for shar in the assets of the dissolved firm as one of the legal heirs of the deceased partner, you do it immediately.
On the basis of the reply to the current suit you can even seek a share in the house property and the agriculture property in the suit filed under the provisions of company law.
You discuss with your advocate properly on further issues before proceeding
1. See it doesnot matter what they reply they have to further satisfy court with evidence in support of their claim. Further he was partner in firm then also there is your share as director share of assets in firm are equally distributed among legal heirs so further claim share in assets of firm also.
Further what also documents you kept in support and what supporting documents they are keeping shall be assessed by the court and can be contested by you.
Further possession is not the issue. Seek help of good lawyer, let all documents be checked by him then file a rejoinder rebutting there claims.
Hello,
You will have to tender you replication before the court of law and thereafter the evidence of witnesses of both the parties will take place.
the presumption as told by you is a rebutable presumption. Somehow arrange for the house or agricultural land that is not there with you.
Also since the same happens to be a complicated matter I would advise you to get in touch with some local lawyer with entire paper book of the case so that a concrete advise can be given to you.
regards
From Saroj vs capt Sanjeev Singh and UMA Ghate vs Umesh phalper case Delhi High court it appears if plaintiff claims partition as co-owner then fixed court fees is to be paid and petition can not be rejected on ground of non payment of court fees on market value. These decisions say this is settled issue in law. Please advise.
Hello,
That is true what you are saying. This objection can not be taken by the respondent
Regards
You can get the court fee adjudicated and pay shortfall of court fee if any the suit shall not be dismissed on want of court fee.
Yes, in partition suit the court fees is always fixed and does not vary with the market value of the property.
Section 7(iv)(b) of Court Fees Act, provides that in a suit to enforce the right to share in any property on the ground that it is a joint family property, the amount of fee payable under Court-fee Act, shall be computed according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It further provides that in all such suits the plaintiff shall state the amount at which he values the relief sought by him. Article 17(vi) of Schedule II of Court-fees Act provides for payment of a fixed Court fee in a suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherwise provided for by this Act."
There are plenty of such rulings stating that the court cannot reject the plaint just because of deficit court fee, the plaintiff may be directed to make good the deficit by applying proper provisions of law, the suit may be allowed to continue thereafter.
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Bring all this on record before the court. All the facts should be brought on record in evidence. You can then only claim partition rights in the property.you need to take appropriate steps in evidence stage in the said suit
Dear Sir,
Your last statement is correct, the co-sharer/owner has deemed ownership over the property. Just produce available evidence and obtain necessary documents from public officers to show that all the properties were acquired due to joint efforts and joint sources. Produce oral evidence also to support documentary evidence.
Right of co-owner do not effect, if no actual possession but for purpose of court fee, have to show constructive possession to seek exemption of court fee acc. to market value.
As off what i understand going through judgement, that person in joint ownership do not required to pay ad valorem court fee i.e. acc. to market value but only court fees payable for filling suit.
....The plaintiff continues to be joint owner of the properties and hence in constructive possession of the same and therefore she is not required to pay ad valorem court fee. The arguments of defendant fail on both counts. The suit is maintainable
Decree fees ?
On the evaluation of issue related to court fees, if court will find deficiency in submitting court fees, court will order to pay accordingly and within such time.
Court do not dismiss suit straight away without giving opportunity to rectify court fees.
Determination of market value (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.