Sandeep Gupta (Manager) 30 September 2017

To understand the court stand in particular situation

Hi,

I wanted to know the stand of the courts in following situation.

Daughter filed a case in March, 2013 for the partition saying that are joint family properties of her father and she and her family constitute a joint Hindu Undivided Family governed by the Hindu Mitakshara School of Law and the Hindu Undivided Family is in joint possession and enjoyment of the suit schedule properties. She, as a coparcener of the joint family is entitled to 1/8th share in the Scheduled ‘A’ Property and Scheduled ‘B’ Property. But in one of the para of plaint she also mentioned that her father bought these properties on so and so date.

I am the third party to the case and bought one of the property in 2006. Earlier I filed IA for rejecting the plaint for insufficient court fee saying that the properties are not the joint family properties of father. It was self-acquired properties (referring that para of the plaint where she has mentioned that it was bought by her father) and the family is not a joint family and in joint possession of these properties since it is admitted that one of the property was sold to me in 2006.

Based on the averments in the plaint and the arguments of the plaintiff, the trial court rejected my IA and passed an order dated 13/08/2015 with following view

It is well settled that the question of valuation of the suit and sufficiency of Court fee paid on the plaint has to be decided based on the averments of the plaint. As such, it requires for this Court to consider the plaint averments at first instance.
The plaintiff has maintained this suit for partition claiming her 1/8th share in the schedule properties and for other reliefs including declaration that sale deed dated 03.06.2006 and gift deed dated 05.07.2013 are not binding on her.
The pleadings of the plaint indicate that the plaintiff has maintained this suit for partition and for other reliefs on the ground that the schedule properties are the joint family properties of her and defendants No.1 to 9. It is the case of the plaintiff that the schedule properties are the properties purchased by her grand father.
Further it is to be noted that the plaintiff has not sought for cancellation of sale deed or gift deed in question. On the other hand, she has prayed to declare that such documents are not binding on her.

I have challenged the said order which is pending in high court from long time.

While all this, I have filed another IA dated 2/2/2016 based on the Hon’ble Supreme Court’s ruling vide its judgement in Prakash v/s Phulavati reported in 2015 AIR SCW 6160 because in this case father died in 1998. Court has accepted the IA and dismissed the case.

Daughter who filed the case challenged the order of second IA in high court that she has never said that the properties are her ancestral properties and admitted in her RFA that it was self-acquired properties of father. She has not mentioned about the earlier IA and finding of the court on that.

What will be the court stand? Did she file a false affidavit earlier that the properties are her joint family properties? Will HC reject the case and initiate criminal proceeding against her for misleading the court?

Thanks and Regards

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8 Replies

Siddharth Srivastava (Advocate) 30 September 2017

Your question is hypothetical and academical in nature. The out come and stand of court depends on facts of the case. The facts given by you are partial in nature. Secondly it is not a lecture room but is a platform to suggest solution to the needy persons. This is not to test the knowledge of lawyers on this platform. It is better that you consult a lawyer with all details and donot forget to pay him his consultation fee also.

Sandeep Gupta (Manager) 30 September 2017

sir,

The question is neither hypothetical nor academical in nature. Ths is the real case and the number is OS2339/2014 in karnataka city civil court. I am the defendent number 10 to the case suffering from many years. I have already paid lawyer fee of many thousands. I am not testing the knowledge of any one and I am the one of the most needy person to get openion.

Question was asked in short because I know no one has the time to read the full case.

I can only rely on this forum to get openion. Pleaes see the plaint attached to understand the case and since I really deserve your openion let me know your openion. I will be really thankful to you.

Thanks and Regards,

Attached File : 278727 20170930204407 856525208 leelavathi plaint os no 2339 21 3 2014.pdf, 278727 20170930204539 856525208 court fee.pdf, 278727 20170930204550 856525208 2005 act.pdf downloaded: 73 times

Siddharth Srivastava (Advocate) 30 September 2017

The joint family property does not amount that the property is ancestral property. It is to be seen that whether propert was self earned property? Whether there was any WILL left by him? When and who made the sale deed and gift deed? The case of 2015 deals with separate subject regarding Hindu daughter's right in ancestral property and not of joint property. So unless details are not examined it is not possible to advise.

Sandeep Gupta (Manager) 01 October 2017

I do agree but if some one says Mitakshara hindu undivided family property and copersoner to such property. will he not be refering to the ansestral property?

Siddharth Srivastava (Advocate) 01 October 2017

NO. Both joint property and ancestral properties are two different and distict word and meaning. Law does not go with plain reading or understanding of general public.

Sandeep Gupta (Manager) 01 October 2017

One last question if you can answer to me I will be really thankful to you..

While deciding the IA about the insufficient court fee issue in 2015, court has passed and order rejecting my IA with the conclusion that:

"The pleadings of the plaint indicate that the plaintiff has maintained this suit for partition and for other reliefs on the ground that the schedule properties are the joint family properties of her and defendants No.1 to 9. It is the case of the plaintiff that the schedule properties are the properties purchased by her grand father, therefor court fee paid under section 35(2) is correct"

This earlier order on the court fee was not challenged by plaintiff in HC means order of city civil court is final. She has only choose to challenge the order of second IA which was filed based on supreme court judgement of Prakash v/s Phulavati, where the plaint was dismissed on the same ground.

You can say on two occasions different judges of the city civil court (Since the judge was changed while deciding the second IA) reached to the same conclusion. in first, court has rejected the IA and said that court fee is sufficient and in second IA was accepted and the court has rejected the plaint based on supreme court order relates to Hindu Succession act taking the same stand as it was taken in first IA and since father was not alive as on 09/09/2015 daughter do not get the right.

Now if let us say HC consider that the properties are self-acquired properties and set aside the order of the city civil court of second IA obviously negate the earlier order of Court fee which is on the same ground.

in case of BS_Malleshappa_vs_Koratagere_B_Shivalingappa_and_others HC of Karnataka laid down the principle

"If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorises the suit under Section 35(2) of the Act. He is therefore liable to pay Court fee only under Section 35(2). If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence (which may demonstrate absence of possession or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied"

In such situation, case must be automatically rejected. Is that right?

Siddharth Srivastava (Advocate) 01 October 2017

Now your query is totally different. The portion which you have now refereed regarding some partition suit. In partition suit the person must have to pay the court fee valuing to portion claimed in partition. It a very old law. Instead of picking a portion of proceeding in court and inquiring you are required to consult a competent court with all details.