- The property is claimed as ancestral and as a legal heir you are necessary party to the suit in High Court.
- 10 acres in respect of which gift is executed through GPA in favor of your brother’s son is also part of ancestral property in which you are entitled for share. Add yourself as a party in the said suit.
- In a partition suit all properties should be included, any suit for partition without all properties is
- All left over properties in partition suit, club all pending suits together in one Court. Otherwise there can conflicts of judgments.
- Daughters have equal right to share ancestral property as amended Hindu Succession Act and as per SC Judgment in the Case of Danamma. Any partition excluding daughters is invalid and liable to be set aside. Challenge all such partitions by impleading yourself and get it declared invalid. You will get your share.
Partition suit
1. A partition suit is filed in lower court by myself as a daughter of joint family & also got ex-party temporary injunction & in my case I included even certain properties which were sold to the developer by my brother without my consent & at present he also had disputes with developer & as such, case is pending before high court for final hearing & case is filed by the developer for “specific performance of contract”& that’s y even I made developer as a necessary party for my partition case. Question 1 - Is it now legally required by myself to file IA & become a necessary party in HC to protect my property which was sold by my brother without my consent to developer or since developer is already made as necessary party in my suit, is it enough to continue my partition suit ? 2. My father made registered deed in 1980’s among 5 sons & 2 daughters & given lion share to sons & limited share to daughters & preserved 10 acres as parents share till their life time & also mentioned in the deed of two things (a) Such parents’ share of 10 acres should go to 5 sons equally after their life time. However, after my father’s death, 10 acres mutated into my mother name but before my mother death & when she was in bed written condition 10 acres illegally through GPA & in the name of gift deed got transferred into the name of one of my brothers son & as such other brothers has filed case for the same & case is pending (b) Further also stated that no more properties were left for partition in the joint family. However, there were certain properties left & after my father’s death such properties were shared by only 5 sons through creating unregistered deed but as per unregistered deed also not mutated properties among 5 sons & as such there were certain disputes among 5 sons & case is also pending. As stated in 1st question, already I have filed case for my 1/8th share in respect of those properties which were not covered under a registered deed of 1972 & which were shared by 5 sons without daughters consent through unregistered deed. Question 2 – as per latest SC judgment &as a coparcener can I challenge such clause of giving share to only 5 sons in such 10 acres parents share instead of sharing among all 8 members (1/8) since neither they not acted as per the deed or not taken any possession of the properties & as such, can I file impleading application to on-going case among 5 sons to share among all 8 members of the family. Question 3 As per 1st question, partition suit filed by me is only with respect to properties not covered under registered deed & as such not brought 10 acres of parents share in my partition suit which relates to registered deed of 1980’s. So, now is it correct to file impleading application in ongoing cases filed by my brothers for their share in 10 acres of parents share or shall I file IA in my partition suit case to bring even that parents shares o f 10 acres for 1/8th share among all members family.
Asked 4 years ago in Property Law
Religion: Hindu
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10 Answers
You should take out interim application for being added as party to the suit in HC
2) if it is ancestral property you can claim share in the said properties and file inter pleader application
3) it is necessary to peruse documents cited by you to advice further
1. If the subject matter of that pending suit before high court is related to this property too, then you better get yourself impleaded as necessary party to that suit and express your grievances stating that your brother is not having any right to sell your share also along with his share to the builder, therefore this suit may be dismissed since it is not tenable in law.
2. You can ask for your share in the said proeprty as a shareholder/successor in interest to your father/parents.
Since this was your father's self acquired property, it cannot be considered as ancestral property, however as his daughter you have an equal share in the property provided your father did not transfer the same to his sons by a registered deed during his lifetime.
3. You can file a petition in all the pending cases to implead yourself as a necessary party to the case since you are also one of the shareholders to the properties in dispute/litigation.
Besides you can include the said properties in your own suit also by filing an amendment petition to amend and include the additional properties in the sit schedule of properties.
1. Yes
2. Yes you can challenge
3. Yes you can file impleading application too
Dear Client,
An appropriate description of the property is required in filing the partition suit. The partition suit of the property must only be filed in the court having jurisdiction over the partition property. The law of limitation governs the partition of property. According to the Limitation Act, the limitation period to file a partition suit is 12 years (Article 65 of the Limitation Act). The period of such 12 years begins when there is a notification of the adverse claim to the plaintiff or the co-owners in the public domain.The deed is executed on a stamp paper and registered with the sub-registrar’s office. Once the partition deed gets registered, it becomes legal and binding. Partition by way of partition deed is quite simpler as the same takes place through negotiations between the families and avoids the long-standing decisions of the court.A partition suit is instituted when the above-mentioned options fail as the claimants have different points of view and don’t settle at a common resolution. Ultimately, the claimants are left to file a partition suit in the court having its jurisdiction.
There is no fixed time as to when and how a partition suit will be concluded. The period needed in deciding a partition suit differs from case to case. Hence, in total, a minimum period of three years is equipped. Although, as already mentioned, there can be an extension of time with regards to the complexity of the matter.The court fee differs from state to state. It is not consistent and equivalent in all the places. The amount of the court fee depends upon the value of the suit property.
No, a coparcener cannot sell the property during the pendency of the suit. Section 52 of the Transfer of Property Act, 1882 provides transfer of property of a pending suit wherein it is stated that in case of any suit or proceedings is continuing and any right to immovable property is directly and specifically in question, such property cannot be transferred or otherwise dealt with by any party to the suit or proceeding.
Thanks & Regards
1. Yes, you can move an application before the HC in the suit filed by your brother for becoming a necessary party , and to declared the document executed by your brother without getting your consent.
2. If the said property was an ancestral property then your father was not having to transfer the same to anyone without getting consent of all ,and if it was a self acquired then he was having his right to deal the same as per his own wish during his life time.
- Further, for remaining property , after his death it cannot go to your mother only , as it will devolved upon all the legl heirs equally , and hence you have your equal right in the property.
3. Further, in case of ancestral , you having right to claim over entire property of father , even there is a registered deed in favour of others without getting your consent.
With continuation of above please advice for my below questions; Before filing my new case, I filed IA in on-going case of my joint family member where i was not party but IA was not allowed & orders of IA stated that i got my share in registered deed of 1972 & no more share for me but in the suit of IA filed there were certain properties which were not of 1972 deed & orders was silent on unregistered deed properties. So i filed new case only with respect to unregistered deed properties and still two more joint family members cases are pending & i am not a party in that. 1. Is it compulsory to file appeal before HC to challenge dismissal of IA filed before lower court 2. Is it wrong of filing New case without challenging IA dismissed in HC 3. As a plaintiff, Can I approach district court to transfer & club all pending cases of my joint family including IA dismissed case where I have lawful share in certain properties or 4. Can I directly approach HC to give directions for lower court to transfer and club all pending cases of my joint family members including my new case to avoid conflict of judgements. 5. To transfer and to club other pending cases, is it compulsory to first get implead as a party or is it enough to file application directly for district court / HC to club cases along with such stated case certified copies. Please suggest your valuable opinions with details
Asked 3 years ago
You must file appeal against impugned order in HC
2) you should ha e done both
3) you can request court to club all cases
4) it is enough to file application as they are all connected cases
1. In my opinion, the IA filed by you was unnecessary, hence taking up a revision before high court on the decision in IA by the trial court would be another waste of time especially in the event of you having filed a new case seeking your share in the properties that you have mentioned now which were not part of the partition that already took place.
2. The IA filed by you in that case was not entertained by trial court hence you may file a fresh case seeking relief of partition and allotment of your share in the other properties too if at all you are entitled.
Further it is not known that what was the reasons and grounds that you relied upon to file the IA that was dismissed by the trial court, hence you may better seek opinion from a local advocate by producing the copies of the IA and the orders passed in that IA to have a proper opinion as to whether you still can prefer the revision against the orders or to go ahead with the fresh suit itself.
3. The cause of action for the other suits can be known only after perusing the plaints of those suits to form an idea whether your current case can be sought to be tried jointly together with all the related cases. Therefore the opinion for seeking transfer of all those cases for joint trial can be opined only after that, hence you may consult a local lawyer for a second opinion if your own lawyer is not entertaining your desire.
4. No, the high court will not entertain any such applications if the remedies have not been exhausted before the appropriate court.
5. The answer to point No.3 above would be applicable to this question too.
Yes is the answer for all you asked. You can approach HC for all the said reliefs as stated above
Dear Client,
When a suit has been submitted by a plaintiff in particular civil court of his choice, there may
be two choices available to that defendant who is dealing with that case: whether he has to file
his written statement, that is accepting the jurisdiction of the court which has or to file
application for transfer of the suit. Section 22 and 23 of Civil procedure code confers power to
the civil court to transfer suits from one civil court to another civil court on the application of the
defendant of the case.
Hope this clarifies your query and requirement.
Thank you.