• Can final decree be passed in absence of few co sharers

My grand father late karamchand died intestate leaving behind four daughters and two sons.one daughter filled partition suit and preliminary decree is passed,the she filed final partition suit.
the service could not be completed to children of one of my bua.
the court ordered for publication but plentiff failed to deposite the sum.court ordered suit dismissed agaist those co sharers.
i filed application to dismiss entire suit as final decree in absence of few co sharers will not be valid.
the property can not be partioned by metes and bound as two shops are occupied.
can entire suit be dismissed
Asked 10 months ago in Property Law from Kota, Rajasthan
Religion: Hindu
i filed application to dismiss entire suit as final decree in absence of few co sharers will not be valid.
the property can not be partioned by metes and bound as two shops are occupied.
can entire suit be dismissed

You have filed the statement to dismiss the suit in total for the reasons stated, whereas the court has already passed the preliminary decree, it means you have no other option than to file an appeal agaisnt the preliminary decree. 
If the partition cannot be made for the reasons stated by you, the advocate commissioner may file his report accordingly then the court will bring the property to auction and share the sale proceeds to the shareholders accordingly.
There is nothing that only your recommendations have to be accepted, the court will go as per law. 
T Kalaiselvan
Advocate, Vellore
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1) Plaintiff can deposit amount for publication and take out application for setting aside order of dismissal of suit against co sharers 

2) the entire suit would not be dismissed merely because suit against one co sharer  is dismissed 
Ajay Sethi
Advocate, Mumbai
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1419 Consultations
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The absence of one co-sharer cannot hold to hostage the rights of other co-sharers. If any one of the co-sharers could not be served then the court can dismiss the suit against them. The plaintiff can move the High Court against the dismissal of suit against the co-sharers. The entire suit is not liable to be dismissed if even one co-sharer has been served.
Ashish Davessar
Advocate, Jaipur
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484 Consultations
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In your case court already found the property is partable one and fix the shares of the parties (legal heirs).

Now the stage is final decree and execution of shares to the allottees. For that purpose issue of summons to the legal heirs (Defendant) is important. The court will appoint commissioner and surveyer. and pass final decree. The entire suit dismissal petition filed by you is not sustainable. The advocate commissioner can fix the shares of each parties . As per the report the court will pass the final decree .
Ajay N S
Advocate, Ernakulam
1986 Answers
23 Consultations
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