• Family partition

We are 8 brothers and the 3 younger ones including have file a Family Partition Case in 2000 before the Madras High Court. We are opting for an out of court settlement and now 7 brothers have agreed and have signed an MOU. 1 Brother who is the eldest has not agreed as yet. Can the 7 of us file the consent terms in the court and pray for the court to pass a decree? Are there any case laws of Madras High Court & Supreme Court where if the majority agree then the courts intervene & pass orders / decree ? If so if you could please give the case laws.
Asked 1 year ago in Civil Law from Piune, Maharashtra
Hi, in a suit for partition no one is plaintiff and no one is defendant and in order to settle the matter amicably consent of all the parties are necessary then only it is valid and if any one of the party is not ready for settlement then you can not settle the matter.

2. As per law if there is a new right will  come form decree of the court then you have to pay the stamp duty as per market value or else you have to pay  nominal stamp duty.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
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order XXIII rule 3 of  CPC provides that where a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the Court shall order such agreement or compromise to be recorded and shall pass a decree in accordance there-with, so far as it relates to the parties to the suit whether or not the subject matter of the agreement or compromise is the same as the subject matter of the suit.
The requirement of the above provisions are that :
(a)- the agreement or compromise should be lawful;
(b)- the same should be in writing and signed by the parties;
(c)- court shall order such agreement or compromise to be
recorded;
(d)- pass a decree in accordance therewith;
(e)- it must relate to the parties to the suit; and
(f)- it is not necessary that the subject matter of the
agreement or compromise is the same as the subject matter of the suit.
Ajay Sethi
Advocate, Mumbai
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1223 Consultations
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After the amendment of Article 25 of the Bombay Stamp Act. The definition of conveyance has been widened, in view of the amendment decree or final order of the court by which immovable property is transferred is liable to be stamped as a conveyance.
Ajay Sethi
Advocate, Mumbai
23365 Answers
1223 Consultations
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Until all the parties to suit give consent, no decree on mutual consent can be drawn.  Therefore the 8th party to the suit also have to consent to the proposal and compromise agreement/arrangement made or arrived among all other 7 parties to suit. 
Dont bend the law to your convenience.  All are equal before law hence the adamant party if seeks only legal respite, then court will go by the contest and hear all the parties compulsorily to pass a judgement in the partition suit..  
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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1. The consenting brothers can seek a decree on the basis of consent reduced to writing, a request which the court should accede to.

2. No case laws are required. 

3. No stamp duty will have to be paid if the court orders the partition.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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In a partition it is not necessary that each and every property must be partitioned and that the parties are put in separate possession of respective portions of properties falling to their share.  In Rachakonda Venkat Rao v. R. Satya Bat, , the Supreme Court explained the various steps involved in a suit for partition. Depending on the outcome of the adjudication, or area of agreement between the parties, the suit can be disposed of in one stroke, or by way of two decrees namely the preliminary and final.

A preliminary decree declares the rights or shares of parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of divided property then such inquiry shall be held and pursuant to the result of further inquiry a final decree shall be passed. A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are finally determined and a decree is passed in accordance with such determination, which is, the final decree.

Try for mediation and adalath for settle the matter. No mutual consent decree can be ordered by the court ,if all the parties are agreed .
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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When the case was listed ,if any of the person is absent then court can set ex party to that person and passed a decree in favour of others is the property is part able one. The other 7 person can file an application for partition the property as per their MOU.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
16 Mys L J 92', a compromise to which some of the parties to the suit alone are parties is not necessarily invalid, though on good cause being shown by any of the other parties the court has a discretion to reject such a compromise. The courts have a discretion to set aside the decree only as against the party on whom it is found to be not binding and to hold that the compromise decree is binding on others; but this depends upon the nature of the suit and the decree passed.


Sri Venkatasubbarao J. in -- "Thiruvengada Mudaliar v. Thangavelu Mudaliar', AIR 1928 Mad 594, also refer- red to in -- '16 Mys. L. J. 92', gives some instances where it is difficult to give effect to a compromise entered into by some of the parties to the suit, and observes as follows:

"Suppose A, B and C are members of a joint family. If the compromise is entered into between A and B under which A gets a half, but as C is not a party to the compromise A gets against him only a third, it would be impossible to recognize such a compromise. Again, suppose B gives up to A under the compromise some specific valuable items of property. It would be open to C, not being a party to the compromise, to urge that he would not agree to those items being taken by A. In such a case it would be futile to ask the Court to enforce the partial compromise. Again, I may vary the illustration by supposing that B admits some items to be joint family properties and on that footing enters into a compromise with A, C who is not a party to the compromise contends that those items are his self-acquisitions. Surely no court would in such a case recognize and enforce the compromise".

It may be said that generally speaking as, observed in -- '16 Mys. L. J. 92', a suit for partition cannot be compromised by some of the parties to it alone. 
Ajay Sethi
Advocate, Mumbai
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1223 Consultations
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Gobinchandra Sardar v. Bhagavat Sardar A.I.R. 1915 Cal. 473. In that case there was an appeal by the plaintiff in the suit against the preliminary decree for partition and in the appeal, a compromise was entered into between the plaintiff and some of the defendats; the other defendants were not represented at the hearing of the appeal and this was not brought to the notice of the appellate Court when the compromise was reorded. Thereafter, in the final decree proceedings, the defendants who were not parties to the compromise raised objections and it was held that the compromise decree would not be binding upon the defendants who had not been parties thereto nor had signed the memorandum. It was further held that the compromise would not have greater validity that the contract upon which it was based and that a consent decree based upon such a compromise would not bind those who were not parties thereto. The Bench also observed that such a compromise in a partition suit, leaving out of account some of the co-sharers will have to be ignored and a partition will have to be effected only in accordance with the preliminary decree. 
Ajay Sethi
Advocate, Mumbai
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1) terms of family settlement would not be binding upon eldest brother as he has not signed the consent terms 

2) I have already cited judgements In support of my reply that it would not bind your eldest brother as he was not party to the consent terms 
Ajay Sethi
Advocate, Mumbai
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1223 Consultations
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1. No. The wish of 7 brothers can not be forced upon one brother,

2. The easiest way will be to submit the written statement of all 7 brothers that they agree for whatever have been mentioned and prayed in the partition suit 

3. The Court will immediately appoint a Commissioner to partition the said property in to 7 portions with clear demarcations by metes and bounds,

4. Your purpose will be solved. 
Krishna Kishore Ganguly
Advocate, Kolkata
12136 Answers
233 Consultations
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1.  For for filing partition suit or for getting the decree effected, you shall have to pay the Court fee according to the value of the property,

2. If you register settlement deed, you shall have to pay for the stamp duty accordingly. 
Krishna Kishore Ganguly
Advocate, Kolkata
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233 Consultations
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1. No. There is no case law by which wishes of the majority has been forced upon the minority,

2. All shall have to agree for the settlement,

3. Negotiate with your said brother.
Krishna Kishore Ganguly
Advocate, Kolkata
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233 Consultations
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1. Court will pass order for partition since all 7 brothers are agreeable with the prayer of the partition suit filed,

2. Court commissioner will be appointed who will make partition of the property generally as per the  consent of the 7 brothers and submit report before the Court for passing judgement. 
Krishna Kishore Ganguly
Advocate, Kolkata
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233 Consultations
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You must understand that the lower courts are fact finding court. So the complicated question of laws are not consider in lower courts. All the persons have reserved 1/8 th share in the property equally. If one of the person is not come forward for claiming about his share then his share will be kept in abeyance ,reserved him and balance will be partitioned by the court through preliminary and final decree with considering MOU. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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If you are knowing the answer, there was no need to repeat the question.   Court cannot force somebody's decision on a third party.  Out of 8, only have consented for a compromised settlement, the 8th person has opted out, so court cannot force the decision of 7 people on the 8th person. It may issue notice, but if the 8th person decides to contest, the court will hear him as well as others and pass judgement based on the proceedings before it.
You may look for the settled laws yourself because such thing in my opinion may not be tenable. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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1. No case law will be asked to be produced. The consenting shareholders are always at liberty to make a settlement.

2. It is the prerogative of the court to pass a decree or not. When 7 out of 8 brothers are seeking a compromise the court will allow it. 
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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