My father has partitioned the property to his two sons along with himself equally. Father has specifically mentioned as condition in the regd. deed as if eighter of sons do not beget the male issue (child) then the property shall go to the other sons son. Now that father has expired in 1985 who executed the regd. family settlement deed. The 1st son is alive, but he has no childrens. now his age is 67yrs. But he has already sold the property which was alloted to him in regd. family settlement deed. Since the second son is also alive & has got 2 male childrens , after thieir majority had filed the suit in local senior divn. court against his uncle & the purchaser, praying for declaration & covenant running with the land. The case was at argument stage almost at the end stage after 5years at the trial court. Meanwhile the defendents filed civil revision petition at high court of Karnatak at Dharwad bench stating that the case filed in trial at court is prematured since the 1st defendent is still alive & plaintiffs will not get any right till the death of defendent so the suit is prematured & liable to be dissmissed. Inspite of argument that the suit property is already sold & how the plaintiff will get back the property . it iis herby also argued suit is filed at trial court because he gas already sold the property & he has no issues , clearly conditions voilated as per regd. family settlement deed. BUT high court passed the order as the case is prematured , & plaintiff will not get rights till the death of 1st defendent. Aggrieved by this order , plaintiffs moved to SUPREME COURT for SLP but again there also the case was not admitted. We are told that the review petition also will not help. So can we file Civil Appelliate Jurisdication SLP at SUPREME COURT. Looks like we lost all hopes in getting justice. Please advice us as to what next.
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Hello,
Do not file any case right now, the same will be barred by res judicata.
As and when he passes away you may file a suit in the competent court and at that time the court can not say that since he has passed away the suit can not be decided because of the observation of the court.
Though, you are right in your contention but since SC has refused to admit the appeal nothing much can be done.
Regards
Hi,
it may be said that initial agreement made by your father was wrong in the sense that nobody can be deprived of his basic rights because of not having a male child. it is against the law and hence the settlement may also be void if argued strongly by the opponent.
Since appeal against HC order was dismissed by SC you can almost file review petition
You have exhausted your all the remedies which you could have availed of.
Now you are vanquished till the highers t echelon of the judicial system on India now only option remains is to wait till the death of the aid brother.
Review petition will also meet with same fate.
So fresh appeal lies in SC anymore.
However do not fail to note that the said clause restraint clause as mentioned in the settlement deed has no legal enforceability and even on the death of the said uncle you can not meet with success.
1. After the dismissal of SLP neither review nor curative petition will be of any help. The Civil Appellate Jurisdiction of the Supreme Court cannot be invoked once the SLP has been dismissed.
2. It is not clear as to against which order the Revision Petition in the High Court was filed. Nothing can be said without perusal of the documents.
Dear Client,
Am kind of surprise - may be reply not property drafted. here the issue is never of premature but cause of action and how it is arise.
Certainly when property is already alienated than where the question of male child be gotten left. Even if it is expected that the male child can begotten in future still he has no power to sell it, as property will devolve in child than.
Well, review petition can be filed subsequent to the dismissal of an SLP inasmuch as at the stage of dismissal in HC.
SLP was dismissed without assigning any reason by the apex court and hence a review petition before the high court was maintainable.
Firstly in my opinion the suit filed by the plaintiff is not justified and not maintainable in law.
There is no cause of action for the suit, and if any it may arise only after the lifetime of the defendant.
Once a property has been transferred by a registered settlement deed, it becomes the absolute property of the donee/beneficiary.
The high court and supreme courts have rightly held the decision against the plaintiff.
You may not get any favorable decision even if you prefer review before supreme court.
Dear Sir,
It is very interesting case. With due respects, the high court not resolved the issue logically. I may be permitted to blame you also for filing suit for injunction restraining the uncle from alienating the property as he is barred by selling the property or otherwise alienating the property. During your minority natural guardian i.e your father could have filed such a suit. The uncle clearly violated the terms of settlement deed as such the sale to be held as null and void. Now you can try in the supreme court and get enlarged the law and you may get justice. Even after death of your uncle you may raise such issue by filing suit for cancellation of sale deed as it violated the settlement deed condition. At one point of time I am sure you will get success.
