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Mohamed Ali (employee)     13 March 2015

Civil cpc

Dear Sir,

 
  A Sunni muslim partition Suit of 1950 is still pending in Final decree proceedings which started in 1984, The Suit was preliminary decreed in 1960 as there were 6 Sons and 5 daughters, As per Mohameddan law each son got 2/17 th share and each daughter got 1/17th share.

Preliminary decree consisted of 2 types of properties town and revenue properties, for the part of decree concerned with town properties, Final decree proceedings got completed in 1993 and Execution of town properties is also completed for the town properties and the preliminary decree concerned with town properties has attained finality and no where in question now.

Final decree proceedings for the revenue properties is also completed in 2011 but is challenged and is pending in Regular appeal.

Question: In one case of a daughter who got 1/17th share in town properties, as she had expired the  town properties are in the joint name of her legal heirs as they have some dispute. hence the properties has to be divided among them,

So We filed an Interlocutary application in the Pending FDP to divide the town properties but the court rejected our plea stating  the shares of legal heirs of the daughter(decree holder) will not be determined by this FDP court this FDP court is only concerned with decree holders share not her legal heirs.

Hence we filed a seperate partition suit to divide the joint town properties among the legal heirs of daughter, But the trial court has rejected our plea under Order 2 rule 2 of CPC, stating since the FDP proceedings are still pending you can raise your pleading in the FDP court overlooking the fact that it had already been raised, Now we have filed a regular appeal in the District court against the trial court order,
Whether the filing of seperate partition suit attracts Order 2 rule 2 of CPC as the Final decree regarding town properties has attained finality long back in 1993 now it is only pending for revenue properties town properties are no where in question.

Any Citation supporting is welcomed..

Thanks and Regards
Imthiyaz



Learning

 1 Replies

Lawyer SALEEMA (Advocate Madras High Court & Legal Consultant Chennai Law in Law Firm. +91-9698884779)     14 March 2015

If the dispute is only regarding the division of  1/17 share between the legal heirs of the actual sharer,  Order 2 Rule 2 is not attractable.

In our view, separate suit for partition among the said legal heirs alone is maintainable.


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