Speedy solution to partition suit
Family pedigree: Grandfather(Died 1985), GrandMother(died 1988) has three daughters (2 Alive and 1 Died) and a Son. The Son is my father and my father has 3 children, My younger Brother, my younger Sister and myself.
In the year 2013, a partition was affected under lok Adalat among My father, My Mother, My Brother, My Sister and Myself.
Now, A new case is filed by my Grandfather’s daugher’s (Deceased 1994) Sons claiming share in my grandfathers property and the Judge has also given a Temporary Injunction.
I has under stood that a supreme court judgement namely Prakash & Ors V/S Phulavathi & Ors case that the Hindu Succession (Amendment) Act 2005 applies only to Living Daughter of living coparceners as on Sep 2005.
In the present case my grandfather and his daughter have been deceased long before 2005, now the court has accepted the case filed by the sons of the deceased daughter of my grandfather.
Another Important point to be noted is that there was a partition made in 1976 between my grand-father and my father by way of a court decree and also a WILL(Not sure if the will was registered) by my grand-father in 1985 that the portion he got in the partition which was in 1975 that the properties must go to me(grand-son). This clearly states that he did not die interstate.
The documents in the municipal register shows that the properties have been transferred in my name from my grandfather through a letter of oath from my father to the municipal chief officer mentioning that all the properties of my grandfather should be transferred to grandson(me) as his father had a WILL and the beneficiary is grandson(Me). The WILL is held currently by my father and he is not giving it.
I have certified copy of the letter from the municipal.
Initially the properties were acquired by my grandfather through a partition with his brothers hence he becomes self acquired properties at my grandfather's hands. There is registered relinquishment deed between the brothers and my grand father in 1965
In this whole episode my father is king maker and is using deceased Sister’s sons as pawns to file this suit for partition and claiming the Lok Adalath degree made in 2013 as Null and Void so that I get the least properties if the share are redrawn when the sister’s come in a coparceners.
Since I'm yet to file my averments and I dont want to follow the regular procedure of filling a written statement and hearing. Hence please advise me how can I approach this case so that the case can be dismissed initially only. Basically I want have a speedy disposal. In the present world everybody is behind money including my lawyer and they will tend to prolong the case unnecessarily and it a trauma.
What are the various grounds I can take to dismiss the case at early stage itself. Please let me know if the limitation period applies, Hindu Succession Act applies, is there anything that can be mentioned so the suit is barred by law.
Special note is that on my father’s instance my sister has filed a case in the case court asking the Lok adalat decree 2013 be made as Null and Void and this case has come to stage that my sister has filed a IA seeking liberty to file a fresh suit in a competent court or a writ petition but we have filed objection that the suit be dismissed not to allow the my sister the liberty to file a fresh case. The hearing is posted to 03-Sep and in the mean time the above case is registered.
Hoping someone advising the easier route in approaching a case. The case is posted for 02-sep.
Asked 2 years ago in Property Law from Bangalore, Karnataka
1) you have to file written statement deny allegations made in suit
2) you have to rely upon partition made in 1975 between grand father and father as per court orders
3) also rely upon grand father will bequeathing property to you
4) the will has to be proved . you will have to apply for probate of grand father will
5) prove that will was executed by testimony of attesting witnesses
1. The case can be dismissed at the threshold if you can prove that the plajntiff does not have a cause if action on a perusal of plaint.
2. If the property in question is the self acquired or separate property of your grandfather then it is not ancestral in character, so Phulwati's judgment does not apply.
3. You have to face the trial.
Thanks for the advise, however there is some more information which i forgot to mention earlier.
1. All the 4 children of my grandfather were born before 1956. Will the daughters still get any share or equal share as some website have conflicting views? Is there any supreme court decided case where people born before 1956 are not eligible?
2. I had published an article in 2011 in the local and state newspapers about pending suit for partition which i had earlier instituted against my immediate family members with all the suit scheduled properties. These same set of properties are mentioned in the current suit too. Is there any limitation period that i can rely so the case be stronger in my favor?
3. What if i not able to get the Will copy even after I file for probate of the will. What is the likely outcome? However i do have a certified copy from the muncipal records that my father's undertaking that there a will of my grandfather bequeathing the properties in grandson's(myself) name.
4. Can a lok adalat compromise decree be challenged in the district court who were not a party to the earlier suit?
Asked 2 years ago
1) daughters will have equal share in grand father properties
2) what happened to earlier suit for partition filed by you ?
3) you cannot file fresh suit if earlier suit is pending
4) you can issue legal notice to other legal heirs to obtain copy of grand father will . if will is regd you can obtain copy from sub registrar office