Gourang M Haldipur 25 March 2019

Maintainability of a final decree petition

My uncle had filed an FDP as the sole petitioner against 13 members of the family including me in respect of seeking partition and separate possession of a family dwelling house.During the pendency of the FDP (it is still pending) the sole petitioner and 9 out of the 13 respondents sold their undivided shares (without court permission) to a stranger who was impleaded as respondent no:14. I filed an application that the FDP is not maintainable as the sole petitioner along with 9 respondents sold their undivided shares to a stranger. It was further pleaded that the only remedy for respondent no;14 being a stranger to the family, was to sue for general partition. The trial court dismissed my IA on the sole ground that since respondent no:14 was permitted to be impleaded as respondent by the H.C the FDP was maintainable. I believe it is a wholly wrong order. What do I do now. Kindly advise

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4 Replies

Shashi Dhara 25 March 2019

As already ur uncle has obtained preliminary decree and now he has filed for final decree to finalise partition in metes and bounds by allotting there shares respectively.they have sold there shares to stranger now he has right to take all parties share by impleading him as party and to take there share s to his possession.

Vijay Kumar (Law Officer) 25 March 2019

Originally posted by : Shashi Dhara
	As already ur uncle has obtained preliminary decree and now he has filed for final decree to finalise partition in metes and bounds by allotting there shares respectively.they have sold there shares to stranger now he has right to take all parties share by impleading him as party and to take there share s to his possession.

This is incorrect advice.

Gourang M Haldipur 26 March 2019

Thank u sir

Gourang M Haldipur 26 March 2019

Sir- I thank u and Vijay KKumar Sir. I had filed that application on the suggestion of Honble Mr. Justice Pinaki Chandra Ghosh (Present Lokpal) when my SLP challenging the impleadment of stranger purchaser as a respondent no:14 in the FDP came up before him for hearing. Justice P.C.Ghoshe was of the considered opinion that the FDP was not maintainable since the sole petitioner had sold his share to stranger respondent no:14. It was also the oral observation of Justice Ghosh that the only way for the stranger defendant was to file a suit for general partition and possession, since the present FDP pertains only to the members of the family.