Suit for partition...
Suresh Babu Rai
(Querist) 10 April 2014
This query is : Resolved
Respected seniors!
I have filed a suit for partition against the father and the grandmother. The plaintiff No.1 is the son and 2 is the father. I have clearly and categorically mentioned that’ the parties to the suit are Hindus and governed by Mitakshara School. That after the death of grandfather of the plaintiff, the plaintiffs, defendant No.1 and 2 has succeeded the suit schedule properties.
The suit schedule property item No.1 is still continuing in favour of grandfather of the plaintiffs and 2 is nominally recorded in favour of defendant No.1, who is the father of the plaintiffs and only son to their grandfather.
The court has returned my suit on the ground that, “State Under what provision of Hindu Succession Act the plaintiffs are entitled to half share in the suit schedule properties, hence may be returned.
Is this correct on the part of the court to ask to mention the provision of law in the plaint?
ROHIT SHARMA
(Expert) 10 April 2014
1. You see, as a great grand son you cannot seek partition of a joint Hindi Family under order 20 rule 18 of the C.P.C. 1908, unless you have obtained a succession certificate u/s 372 of the Indian succession Act, 1925 and after that as per u/s 10 of the Hindu Succession Act, such ratio of the shares are to be decided and quoted.
2. Of course as a single plaintiff ( great grand son) you are not entitled to half of the share of such property of the intestate.
3. The P.O. of the Court is legally competent to ask such inquiries. This is a question put to your advocate it is who shall be able to answer to such inquires by the court and if he fails to do so the court may in its discretion dismiss the suit.
Adv. Rohit Sharma.
(M) 09824047971.
E-Mail : lawgate1349@gmail.com.
Anirudh
(Expert) 10 April 2014
(1) You say that the property is in the name of the grandfather.
(2) When did the grand father die?
(3) please indicate how the grand father got the property - whether it was his self acquired property or he got the property from his father?
(4) If the grand father got the property from his father in which year did he get it?
T. Kalaiselvan, Advocate 
(Expert) 11 April 2014
First clarify the details raised by experts above for proper opinion and suggestion.
Suresh Babu Rai
(Querist) 11 April 2014
The Defendant No.1 is the father of the plaintiff No.1 and 2.
The Defendant No.2 is the grandmother of the plaintiff. The property involved in the suit is self acquired property of the grandfather of the plaintiffs. The grandfather of the plaintiffs died in the year 2004 as intestate. As such, after the death of grandfather of the plaintiffs, the plaintiffs and the defendants have jointly succeeded the same and continuing their joint possession. The entries in the concerned records are still continuing in favour of deceased grandfather of the plaintiffs, though he died in the year 2004 leaving the plaintiffs and the defendants as his class I legal heirs.
Now, taking the advantage of hiking of market prize, the defendant No.1 and 2 and keeping the differences with the mother of the plaintiffs, they are denying the share of the plaintiffs in the suit schedule property, which was owned and possessed by the grandfather of the plaintiffs.
Anirudh
(Expert) 11 April 2014
There are lots of fallasies in your assumptions, such as:
"1. That after the death of grandfather of the plaintiff, the plaintiffs, defendant No.1 and 2 has succeeded the suit schedule properties."
"2. The deceased grandfather of the plaintiffs, left the plaintiffs and the defendants as his class I legal heirs. "
"3. The plaintiffs are continuing their joint possession"
Now I deal with each of your assumptions and state how they are wrong.
According to you, the property was self-acquired property of the grand father. The Grand father died in 2004 i.e. long after the Hindu Succession Act, 1956 came into force.
As per Section 8 of HSA, 1956, the property of a male Hindu dying intestate shall devolve firstly, upon the heirs, specified in class 1 of the Schedule.
Only the wife (i.e. grandmother) and son (i.e. father of plaintiffs) (and mother of the grand father if alive) are getting covered as Class-I heirs in your fact situation.
Therefore to say that the deceased grandfather of the plaintiffs, left the plaintiffs and the defendants as his class I legal heirs, is a fallacy.
Consequently, to say that after the death of grandfather of the plaintiff, the plaintiffs, defendant No.1 and 2 has succeeded the suit schedule properties, is also a fallacy.
When one is not even a legal heir, to say that one is in possession of the property is a further fallacy.
In view of the above, you have not even laid a proper foundation in the plaint as to how your clients are entitled to any share in the property to seek a partition. In fact there is no foundation whatsoever in favour of the plaintiffs.
T. Kalaiselvan, Advocate
(Expert) 13 April 2014
The papers are to be seen for proper opinion. What is your lawyer opining about it?, Get a second opinion from some other lawyer by showing all the papers and narrating the events that happened so far and come back with the related query, f need be.
