A registered family settlement deed was executed by my father (Karta) in the year 1972 in respect of joint family properties, in which he distributed shares of property to his 4 sons and 3 daughters, including myself (Ms. A). Additionally, 5.00 acres of land were reserved as the parents' share, with the provision that this share would be divided equally among the four sons after the parents' lifetime. a) In 1980, my father passed away, and the property was transferred into my mother's name based on the pavathi katha. b) During her lifetime, my mother created a registered will, leaving a 1-acre share of the 5-acre property to my daughter (Ms. B). c) Subsequently, my elder brother's son, Mr. C (Grandson), executed an illegal registered gift deed for the entire 5-acre parents' share of the property, including my daughter Ms. B's 1-acre share, by creating a power of attorney (GPA) from my mother. d) After my mother's passing, we initiated a legal case (O.S (1)) against Mr. C, seeking the declaration of the gift deed as null and void and the return of Ms. B's 1-acre share. e) Concurrently, the four sons filed a separate case (O.S (2)) against Mr. C in the same court to claim their 1/4th share of the property. Current Status: In the O.S (1) case, the court issued an ex parte order, declaring both Will in favor of Ms. B and the gift deed in favor of Mr. C made by my mother as null and void & also the case was dismissed, but the order also stated that the 5 acres were ancestral property shared among the four sons and three daughters, with only a 1/8th share allotted to the parents is entitled for execution of wills or gifts in anyone’s favour & other side, the O.S (2) filed by my four brothers is still pending in execution stage. In between being one of the daughter I filed impleading application in the said suit of O.S (2) filed by brothers and now I am one of the defendant in the said suit. Our Actions and Questions: 1. Given the court's ruling in O.S (1), which declared the gift deed null and void, do we need to proceed with the trial in O.S (2), or does this situation fall under the doctrine of Res Judicata? 2. Can we submit the order copy of O.S (1) to the O.S (2) court as evidence and request that they dismiss the case based on the orders already passed? Furthermore, can we request the court to order an equal share for the four sons and three daughters as per the O.S (1) court's ruling? 3. Since the O.S (1) court order was ex parte, will the O.S (2) court provide an opportunity for my four brothers and Mr. C to present their case and arguments regarding their 1/4th share of the property? 4. Can I file execution case for my 1/7th share in 5 acres of land based on orders passed in my daughter case of O.S (1)? 5. Filing application under order rule 7 and section 11 before O.S (2) court is required to dismiss the suit or just filing Memo with O.S (1) court order copy is sufficient to dismiss the suit.
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
1)no need to proceed with trail as court has given finding that you dont have one fourth share in property
2) request court to pass orders based on orders passed in earlier suit
3) if no appeal has been filed order passed by court has become final and binding
4) file application under order 7 Rule 11 for dismissal of suit
1. No, it will not be affected by the doctrine of Res judicata
2. The Judgment in OS 1 is totally different to that of your claim in OS 2. Your father after making the settlement of family property among the legal heirs, he withheld his own share in the property and has clearly mentioned that the 5 acres of landed property retained by him shall pass on to his four sons after his death, hence the court passed a judgment cancelling the Will written by mother and the gift deed in favor of the grandson as null and void because your mother was not having any rights in the property that belonged to your father except life interest. Therefore the partition suit filed by the four sons would be maintainable and of course the daughters' claim for a share in it may not be maintainable.
.3 See the above answer.
4. When you don't have a share at all in that 5 acres of land, where is the question of execution of your 1/7th share in it, besides that case is still going on and not decided yet.
5. If you are not a party to the second suit, you don;t have any locus standi to file the petition under order 7 rule 11.
If it is for same cause of action then the resjudicata will be applicable
yes you can set aside the exparte order
if you have decree then you can file execution
order 7 rule 11 required
First of all, you should know that the doctrine of res judicata is a legal principle that prevents the same matter from being re-litigated once it has been finally decided by a competent court. It is based on the need of giving finality to judicial decisions and saving time and harassment to parties. The doctrine of res judicata is embodied in section 11 of the Code of Civil Procedure, 1908 in India. It applies to civil as well as administrative law.
According to section 11, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
The conditions for applying res judicata are as follows.
The doctrine of res judicata also includes constructive res judicata, which means that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject-matter.
Now, coming to your questions:
It depends on whether the conditions for applying res judicata are satisfied or not. If the matter directly and substantially in issue in O.S (2) is the same as that in O.S (1), and if the parties are the same or claiming under the same title, and if the court which decided O.S (1) was competent to try O.S (2), and if the matter was heard and finally decided by that court, then res judicata would apply and O.S (2) would not be maintainable. However, if any of these conditions are not fulfilled, then res judicata would not apply and O.S (2) would have to be proceeded with.
You can submit the order copy of O.S (1) to the O.S (2) court as evidence, but it is up to the court to decide whether to dismiss the case based on res judicata or not. You can also request the court to order an equal share for the four sons and three daughters as per O.S (1), but again it is up to the court to decide whether to grant your request or not. The court may consider various factors such as whether O.S (1) was decided on merits or ex parte, whether there was any fraud or collusion involved, whether there was any change of law or circumstances, etc.
An ex parte order is one that is passed without hearing one party. Such an order may not be conclusive or binding on that party unless it is confirmed after giving him an opportunity of being heard. Therefore, if your four brothers and Mr. C were not heard by O.S (1) court before passing its order, they may have a chance to present their case and arguments before O.S (2) court regarding their 1/4th share of the property.
An execution case is one that is filed to enforce the decree or order of a court. If you have obtained a decree or order in your favour from O.S (1) court, you can file an execution case for your 1/7th share in 5 acres of land based on that decree or order. However, you should also ensure that the decree or order is not stayed or challenged by any higher court or authority.
Order 7 Rule 11 of the Code of Civil Procedure, 1908 provides that the plaint shall be rejected where it does not disclose a cause of action, or where the relief claimed is undervalued, or where the plaint is insufficiently stamped, or where it is barred by any law. Section 11 of the Code of Civil Procedure, 1908 provides for res judicata as discussed above. If you want to dismiss the suit on any of these grounds, you have to file an application before O.S (2) court and prove your case. Merely filing a memo with O.S (1) court order copy may not be sufficient to dismiss the suit.
Submit the certified copy of orders of O.S 1 in O.S 2, you can file execution for 1/7th share only after the O.S 2 judgment is passed.
Dear Client
Res Judicata:
The doctrine of Res Judicata essentially means that a matter that has already been adjudicated by a competent court cannot be re-litigated between the same parties. In your case, the court in O.S (1) has already issued a judgment declaring the gift deed null and void and establishing the ownership pattern of the property. This ruling may have a binding effect on the matter related to the property's ownership.
Submitting the O.S (1) Order as Evidence:
You can certainly submit the order copy of O.S (1) as evidence in O.S (2). This can help support your claim that the property's ownership has already been decided by the court in O.S (1). However, whether O.S (2) will be dismissed based solely on this evidence or whether the court will order an equal share for the four sons and three daughters as per O.S (1) depends on the discretion of the O.S (2) court. It's advisable to consult with your legal counsel on how to present this evidence effectively.
Opportunity for Brothers and Mr. C:
In O.S (2), if your brothers and Mr. C were not parties to O.S (1) and the order in O.S (1) was ex parte, they should have the opportunity to present their case and arguments regarding their 1/4th share of the property. The O.S (2) court may consider their claims and evidence before making a final determination.
Execution Case for Your Share:
If the O.S (1) court has issued an order declaring your daughter's share and the gift deed as null and void, you may be able to file an execution case to enforce this order and claim your 1/7th share in the 5 acres of land. Consult with your legal counsel to initiate this process correctly.
Filing Application under Order Rule 7 and Section 11:
Filing an application under Order 7 Rule 11 of the Code of Civil Procedure can be used to seek the rejection of a plaint in a suit. This can be done if you believe that the suit is barred by the principles of Res Judicata due to the O.S (1) court's order. Consulting with your legal counsel on the specific procedure and arguments to be used in this application is essential to ensure its success.
1. Transfer of immovable property by way of gift after giving SPA to third party is valid 2. First "Will" was made and subsequently without saying anything of previous will, Gift deed was made and gift is not made with her free consent but by taking advantaged of old age of my grandmother "Gifted the property into his name and is that valid. 3. Can we file complaint or separate case against illegal transfer of immovable property to his name
1) yes it is valid .it does not bar principal from execution of gift deed .he should also revoke SPA
2) mere execution of will does not bar testator from execution of gift deed as will takes effect on death of testator
3) if gift deed executed out of undue influence file suit to set aside gift deed
The transfer of property by a registered gift deed is very much valid, the SPA given prior to this shall stand infructuous.
2. There is no restriction ion the part of the testator to transfer the proeprty by a registered gift deed subsequent to a Will made bequeathing the same property, and the gift deed supersedes the Will.
3. If you suspect the transfer of property was done under suspicions circumstances, then you can file a petition to set aside the registered deed.
Dear client,
According to the Transfer of Property Act in India, a gift of immovable property can be made through a registered deed. However, there are conditions, including the donor's free consent and the donee's acceptance. If the gift was made by your grandmother under duress, coercion, or without her free consent, it could potentially be considered invalid. The court's ruling on the first Will and subsequent Gift Deed declared both null and void. If the court found that the Gift Deed was made without your grandmother's free consent or was a result of taking advantage of her old age, this could be a strong point in your favor. However, legal advice specific to the case and its documentation would be crucial in determining the validity of these documents. Based on the facts provided, it seems there might be grounds for filing a complaint or a separate case against the illegal transfer of the immovable property to Mr. C's name. The alleged misuse of power of attorney (GPA) and illegal acquisition of the property could potentially be challenged in court. Consulting a lawyer well-versed in property and succession laws in India would be advisable to understand the specifics and the most appropriate legal steps to take. Regarding your involvement in the ongoing lawsuit (O.S (2)) filed by your brothers, being impleaded as a defendant might afford you the opportunity to present your side of the case and protect your rights to the property shares allotted to you through the family settlement deed. You can reach out to us for further assistance
1. No , this situation not fall under the doctrine of Res-Judicata .
2. You can move an application for setting aside the passed order
3. Yes,
4. If the order is passed for 1/7 the share , then you can file an execution petition before the same court.
5. Yes
