appeal would be dismissed for default if the Appellants fail to appear
2) if appeal is with draw it cannot be revived after 8 years
3) appeal does not hold good if release deed is executed
Is appeal suit valid after release deed with one of the coparcener?
My grand father had 5 sons. my father is eldest one. my father was taken by his maternal uncle to his place as he no male heirs and married his daughter and gave all his property(agricltural lands). A parition suit was decided between my father`s 4 brothers awarding each 1/5 th share in ancestral properties in 2012 by the civilcourt. Youngest brother was the plaintiff P1 and my father D1 and his other 3 brothers D2, D3, D4are respondents.My father died in 2009, after my father death in 2009, I and my family came to the record of the case. preliminary decree was passed in 2012, and the respondents went for appeal to appealant court i.e,district court in 2012 with in time limitation for appeal. during the pendancy of the appeal in the court, an out ofcourt amicable settelement was worked by palintiff and other respndents in 2015 leaving me and my family uninformed. Plaintiff and his legal heirs signed a release deed for 1/5 th share in the ancestral property in favour of other respondents D2,D3, D4. No court notices were sent to us reg the Appeal,and respondents were silent about my share. I applied for final decree proceedings in 2019 and the court commissioner was appointed by the court in 2019. the respondets didn`t contest the final decree proceedings notice and advocate comissioner appointment. In June 2020, Dec 2020, and March 2022, advocate commissioner, mandal surveyor,Mandal Revenue Inspector went to the suit lands after sending notices to respondents for land survey and partition of the suits lands by metes and bounds. my cousins(respondents) gathered a big mob and there was heated arguments, police was called but police also didn`t take any action and survey work didn`t proceed on three occassions, the advocate commisioner was showing intrest in forcing me to compromise with my cousins(respondents) rather than insisting for a land survey with police security. Now after all these, I recieved Appeal suit notice dated with 54 of 2012 last week.I was surpised to see the appeal with 2012 year, which was apparently withdrawn and only after that a release deed was enterted with p1. My questions are: 1. after D2,D3,D4 entered a release deed in 2015 with Plaintiff P1 for 1/5 share in the preliminary decree and the same was clearly mentioned in the release deed, appeal suit of 2012 still hold good? 2. isn`t the release deed it self is the acceptance of the preliminary decree bt the respondents? 3. won`t the appeal suit of 2012 be dismissed by default if there is no response from appealants or can be kept pending forever? 4. If the appeal suit is withdrawn in 2015,can the same be revived after 8 years and there was a release deed mean while? 5. after advocate commissioner was appointed,adv. commissioner came to the suit lands for survey, the adv commissioner reported to the court the survey as "partially executed" the respondents were silent all along and now served the appeal suit notice. is this valid procedure?
Asked 2 years ago in Property Law
Religion: Hindu
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
18 Answers
Suit is a origional side jurisdiction while appeal is a appellate jurisdiction. Both are different. In case of pendency of appeal and if there is no stay then as such legally there is no bar. Release deed does not relinquish right of ownership of executant nor the same is transfer of title in the property. Out come of appeal would govern the fate and ownership of property.
Dear Client,
An appeal can be dismissed for default if the appellants fail to appear in court on the scheduled date of hearing. An appeal that has been withdrawn cannot be revived after eight years. Additionally, an appeal does not hold good if a release deed has been executed.
1. If any fraud or breach done then it’s valid
2. . you can object to it before appeallate court
1. If the appeal was withdrawn by the appellants then there is no question of the appeal suit anymore.
2. The respondents have transferred their share in the property by executing a release deed, which clearly indicates that they have accepted the preliminary decree passed by the concerned court.
3. If the appeal has been withdrawn then where is the question of the same being dismissed for default.
4. If the appeal was withdrawn then they have to file a fresh appeal only but it would be barred by imitation and if they have not sought the leave of the court for filing fresh appeal, then the fresh appeal would be considered as res-judicata hence not maintainable.
5. Without seeing the relevant papers, no opinion can be rendered to this question.
Preliminary decree was passed in year 2012 in a family partition suit for ancestral property my father brothers. Youngest of the brothers was the plaintiff and my father D1 was sailing with the plaintiff. My father died in 2009 and I, my sister and my mother was brought to record as LRs of D1 my father. I have applied for Final Decree proceedings in 2018 and advocate commissioner was appointed after sending the notices. Appealants in the guise of compromise discussions with me, got the appeal suit restored in Dec 2022 I am now staying at new address in Dec 2022 and could not receive the court notices and the appeal suit was restored in Dec 2023 condoning the delay for 1563 days. My questions are below, 1.Plaintiff died in 2021, the IA for restoration of appeal suit was filed in 2022. The fair copy of the appeal suit has no mention of the plaintiff death and his LRs are not brought to record in the IA. Does the exparte order for restoration of the suit hold good? As the exparte order is taken against the dead person. 2.Release deed with the defendant plaintiff in 2015 was not mentioned in grounds of appeal in the fair copy. Does the release deed is an acceptance of the preliminary decree by the plaintiff respondents? Appealnats still have the grounds for appeal. 3.Will the court set a side the restoration of the appeal suit which was exparte order If enough evidence is shown that the appealants had enough knowledge of the suit dismissed for default in 2015. And appealants have come to the court with hiding the facts about the Release Deed and Death of defendant plaintiff and got the appeal suit restored. 4.Do I have to challenge the restoration exparte order of nov 2022 in High court. I received the Appeal suit hearing notice on July 1st week. Or can I pray the District court for quashing the exparte order Other brothers D2,D3,D4 was against the partition.1/5 th share of the ancestral property suit land was awarded in preliminary decree. D2,D3
Asked 2 years ago
1) exparte order dies not hold good
2) court ought to have been informed of demise of your father and LR brought on record
3) court should set aside order of restoration
4) person who has not come to court with clean hands is not entitled to any reliefs
5) file an appeal against restoration order in HC
If the appellant had filed the appeal by suppressing the fact of the death of the plaintiff and without impleading the LRs of the deceased plaintiff.
Now the LRs of the deceased plaintiff can file an implead petition in the appeal on the basis of their status in the final decree petition and pray the appellate court to dismiss the appeal as the appellants played fraud on court by obtaining an exparte orders in the condone delay petition suppressing the fact of the death of the deceased.
The orders passed to allow the condone delay petition may be dismissed if a revision petition is filed before high court with proper documentary evidences supporting the pleading.
also make sure that the appellants have been impleaded as defendants in the final decree petition, if so, then the appellants cannot claim ignorance of the fact of the death of the plaintiff.
If the appellant was the defendant who had entered into a relinquishment/release deed with the plaintiff and this fact was not disclosed in the appeal, then it is a suppression of material fact due to which the appeal is liable to be dismissed, provided the opponent is strongly arguing against.
If the condone delay petition was allowed by the trial court on the basis of an IA filed by the petitioner, then it can be challenged only before high court by filing a civil revision petition against the orders passed in the IA
The order can’t be quashed by same court it can be set aside by appeal court
Appeal suit filed by D2,D3,D4 was dismissed for default in 2015. And D2,D3,D4 entered Release deed with consideration with the plaintiff and his LRs in 2015. Appeal suit was Restored with a delay of 1653 days exparte. I was staying in a new address and could not receive court notices. Plaintiff in OS has died in Oct 2021, but the IA for Condonation of delay (2020) IA for Restoration (2022) and Memorandum of Appeal fair copy in 2023 is till showing the Plaintiff as alive and the substituted notices (news paper) were sent to deceased plaintiff in 2022, the LRs of the deceased plaintiff are not brought to record to this day. Infact defendants (in OS) attended the funeral, 10th day and even the death anniversary of the plaintiff. Here, I was staying at a new address, could not receive the notices foe the condonation and Restoration IAs and the Plaintiff was dead. . The LRs of deceased Plaintiff are keen to challenge the Order for condonation of delay and revocation of appeal suit by the appeal court (District court) My question are: 1.Can my advocate bring to the notice of the appeal court about the death of the plaintiff and and his LRs are not brought to record in appeal suit? Or the LRs of Plaintiff have to implede in the appeal suit themselves. 2.Can the LRs of the deceased plaintiff challenge the condonation of delay and revocation oder in the appeal court(district court) which was given exparte. 3.Can the LRs of the plaintiff have to file the set aside appeal in High court or can the file the appeal in the same court (District court) as the appealents have got the order hiding the death of the plaintiff. 4.As the deceased plaintiff and his LRs have released their share in 2015 through a registered Release Deed, do they still have a right to implede and challenge the exparte order? 5. court will simply allow the LRs of the plaintiff to contest the appeal suit or they have any chance to set aside the condonation and revocation order given exparte
Asked 2 years ago
Dear client,
It seems you're dealing with a complex legal situation regarding ancestral property and a series of legal proceedings in India.
1. Notice of Plaintiff's Death: Your advocate should bring the death of the plaintiff to the attention of the appeal court. Usually, the LRs (Legal Representatives) of the deceased plaintiff would need to be impleaded in the appeal suit.
2. Challenge to Condonation of Delay and Revocation Order: Yes, the LRs of the deceased plaintiff can challenge the condonation of delay and the exparte revocation order in the appeal court (District Court). They can argue that proper notice wasn't served due to the change in your address and the plaintiff's death.
3. Filing an Appeal: The LRs of the deceased plaintiff can file an appeal in the same court (District Court) against the orders obtained by hiding the plaintiff's death. If they believe there was a lack of due process due to the plaintiff's death not being acknowledged, they can address this in the appeal.
4. Effect of Release Deed: The fact that the deceased plaintiff and their LRs released their share in the property through a registered Release Deed might limit their rights to challenge certain aspects. However, it doesn’t necessarily preclude them from contesting procedural irregularities or lack of due process in subsequent legal proceedings.
5. LRs Contesting the Appeal Suit: The LRs of the deceased plaintiff can contest the appeal suit and also aim to set aside the exparte orders. They have the opportunity to present their case and argue that they were not duly informed or involved in the proceedings due to the plaintiff's death.
Under Indian law, the process can vary based on specific circumstances, and the court will generally aim to provide fair opportunities for all parties involved. It’s crucial to gather all relevant documents, evidence of communication attempts regarding address changes, and any legal documents (such as the Release Deed) to support your case. You can reach out to us for further assistance
Your advocate can inform court about demise of plaintiffs
2) LR of deceased plaintiff can challenge condonation of delay
3) they can file application in same court
4) on merits they don’t have case but exparte order can be set aside
1. The LRs of the deceased can file a petition before the appellate court intimating the death of the plaintiff and to implead the LRs in the appeal suit.
2. They first have to get themselves impleaded as parties to the appeal after which they can think about the maintainability of the proposed challenge to the exparte decision of the condone delay petition.
3. When the plaintiff was reported to have died, his LRs were very well aware of the pending appeal suit, they could have intimated the court about the death at that time itself without waiting for the court to send summons to the LRs of deceased.
The court is not aware of the death of the plaintiff hence it became the duty of the LRs to intimate about the death especially when they came to know about the pending restoration petition.
4. If the appeal is against the interest of the LRs then they can very well get impleaded in the appeal.
5. The court will implead the LRs but the challenge against the decision to condone the delay may not be entertained by court.
If they have releases then they can’t claim any relief for share
they can be only allowed to participate in said suit for any other reliefs than claiming share or right
The plaintiff was youngest of 5 brothers filed a family partition suit for ancestral properties. In 2012. D1 was my father and father was sailing (supporting) with the plaintiff. D2, D3, D4 were fighting against the partition suit. Court gave judgement in favour of plaintiff awarding 1/5th share to each brother.Defendants went for appeal in District court. In 2015, During the appeal suit was pending in appellate court, 1.Plaintiff discussed a compromise with the defendants. Defandnats waited for the appeal suit to get dismised for default. 2 Plaintiff withdraw the Final Decree petition in the Trial court saying he is not intrested to continue the case. 3.Legal heirs of plaintiff (3 daughters and 1 son) signed the Release Deed with consideration the plaintiff was not made party to the Release deed, only son and daughters were shown as Releasors. Plaintiff died in 2021. My father died in 2009.I my mother and sister are legal heirs of D1, went for final decree petition in 2018 and the fianl decree petition is in progress. Appeal is now restored with condonation of delay of 1563 days exparte. The Release deed clearly mentions that suit lands as anceatral property and as per the trial court judgment the plaintiff is entitled to 1/5th share which they are getting released through this Release deed. The appealants are hiding the Release deed and didn`t bring to the notice of the court to this day. I got the certified copy of the Release deed. My questions here are: 1. Does the Release Deed will act as estoppel and appealants have no scope to argue in appeal suit. 2. what could be the legal reaosn why plaintiff was not made party to the Release deed as Releasor along with his sons and daughters? 3. Does legal heirs of the plaintiff have legal capacity to sign the Release deed to release the 1/5th share when their father (plaintiff) is alive? 4. Does the Release deed has to be recorded in the court to amend the shares and pass a fresh Preliminary decree.?
Asked 2 years ago
Release deed is binding on parties
2) father should have been made party to the release deed
3) legal heirs can release their share in ancestral property
4) draw attention of court to release deed
1. The release deed executed by the legal heirs cannot be a reason to seek for estoppel.
The appeal suit will proceed as per law and the circumstances.
2. The release deed is a matter of an arrangement within the family members, however the suit cannot be said to be affected by such release deed because the suit is for partition.
3. The legal heirs can release their rights in the property towards their share if at all they are entitled to a share in the property.as coparceners provided the property is ancestral in nature.
4. No, until and unless this is brought out on court record, no decision can be taken by court for the things happening outside court.
Dear client,
1. Effect of Release Deed: The Release Deed can act as a form of estoppel, especially if it clearly states that the lands being released are ancestral property and acknowledges the plaintiff's entitlement to a 1/5th share. This document might limit the appellants' arguments regarding the plaintiff's share if presented properly before the court.
2. Plaintiff Not Included in Release Deed: The legal reasons for not including the plaintiff as a releasor in the deed could vary. It's possible that the plaintiff might not have been included due to his willingness to relinquish his share and might not have considered himself a party to the deed. However, this would need careful legal scrutiny based on the specific circumstances surrounding the creation of the Release Deed.
3. Legal Capacity of Plaintiff's Legal Heirs to Sign the Release Deed: Generally, the legal heirs of a living person may not have the authority or capacity to release a share in ancestral property without the involvement or consent of the person who holds that share, i.e., the plaintiff. If the plaintiff was alive and mentally competent, their direct involvement or consent in the release would typically be required.
4. Recording the Release Deed in Court: To amend shares and pass a fresh preliminary decree, especially considering the changes brought about by the Release Deed, it would be prudent to present the Release Deed before the court. This document can be used as evidence to petition for an amendment to the preliminary decree, specifying the changes in ownership as per the deed.
In essence, the Release Deed holds weight as a legal document, especially if it clearly outlines the relinquishment of the plaintiff's share in the ancestral property. However, the circumstances surrounding its creation and the absence of the plaintiff's inclusion might need further examination by a legal expert. Bringing this document to the attention of the court during the appeal proceedings could significantly impact the case's outcome. You can reach out to us for further assistance
The Release Deed says as follows "Releasor 1 is ths son of the Plaintiff (XXX) , Releasors 2,3,4 are daughters of the plaintiff. The Plaintiff originally filed a suit for a partition vide suit No: xxx of 2006 in the Sr.Civil Judge court against D1(later on expired) and 7 others over the immovable agricultural lands in Survey No: xx, xx, xx, ...in xxx village. In the said suit Plaintiff has claimed for 1/5th of the share over the case schedule property. The court passed a preliminary decree dated /xx/xx/2012. as per the said decree the Plaintiff (XXX) was entitled to 1/5 th share over the case schedule propert as mentioned above. Aggrieved bt the decree, an appeal suit was filed vide AS No: xx of 2013. During the pendency of the appeal case an amicable settlement has beeen taken place and compromised accodingly cases has been closed as withdrawn (plaintiff with draws the final decree petition in the OS) in the trial court. That in pursuance of the things above mentioned things, The releasors have intended to release all their inherited 1/5 th share. Rights and cliams which are inherited from Palintiff(XXX) and their ancestors over the suit schedule properties of this release deed in favour of releasees for a monitory consideration of Rs.xx,xx,xxx. The releasors have recieved the said consideration from the releasees and acknowledged the same. That the Releasors Release, Renounce, Relinquish and disclaim their joint inherited 1/5 th share title and intrest in the schedueled properties i favour of the Releasees to have and to hold the same as obsolute owners of the said properties exclusively together with ways, liberties, privelages easements,and appurtenances belonging there to. The Releasors have agreed to cooperate with the Releasors to get the said property mutated exclusively i the name of Releasees in Reveue Record. My Questions are: Does this Release Deed is acceptance of the Preliminary Decree and have little scope for appealants? I am son of D1.
Asked 2 years ago
they have relinquished their share in property
2)it is binding on parties and no appeal is maintainable
The release deed is only for relinquishing their rights in the properties.
However it is not a relinquishment of the rights conferred by the decree and judgment in the preliminary decree made in their favor by court.
For this the recital in the release deed should have a mention about the relinquishment of their share granted as per the court decree in os no. dated....
Otherwise this decree will remain in tact
Dear client,
The Release Deed appears to explicitly acknowledge and accept the preliminary decree issued by the court, confirming the entitlement of the plaintiff (XXX) to a 1/5th share of the ancestral property. It mentions the court's decision and explicitly states the intention of the releasors (the legal heirs of the plaintiff) to release their inherited share in favor of the releasees for a monetary consideration.
Effect on the Appeal: The language used in the Release Deed seems to acknowledge the plaintiff's entitlement as per the preliminary decree. This document could significantly impact the appeal proceedings, potentially limiting the scope for the appellants to contest the plaintiff's share. It strengthens the acknowledgment of the plaintiff's entitlement to the 1/5th share as decreed by the court.
You can reach out to us for further assistance