Partition suit -lost case - appeal -tamilnadu

As per your query you have lost your case in Lower Court. If the Lower Court is Senior Civil Judge, if the value of the property is less than Ten Lakhs then the Jurisdiction of the appeal will be in District Court. If the value of the property is more than ten lakhs then it will be in High Court. The Limitation period to file appeal is thirty days from the date of Certificed Copy of Judgment is ready. If you want I will prepare grounds for your appeal. Once if you file appeal then the Lower Court order will be stayed automatically unless the appeal is disposed. Since it is first appeal numbering of appeal is sufficient. So when once you file appeal the respondent dont have right to disposses you from the property.

V E Manoj Kumar

Advocate

Cell No. 86 86 15 92 92 

It is not clear why do you feel that your sisters are not entitled to their share in your father's self acquired property.

Why do you feel that the decision of the court is faulty.

Was there any WILL left by your father giving the entire property to you?

Upon knowing the answer to the above points, one will be in a better position to answer your query whether you should prefer appeal or not.

thanks.the property is worth more than a crore. i feel my sisters should not get share because a)a settlement deed was issud on my name by my father but it is unregisterd 6 yrs back. we are hindu family b) i had spent on the maintenace and construction of house with bills on my name c) i spent part for the marriage of my sisters d) i spent for the medical expense of my parents so far.none of these stood in the court point. not sure why..but will it help in any way in the court ,if i go for appeal.

@manoj, with your suggestion, that i cannot be vacated once a appeal is filed, how long can i survve with that. i understand they cannot dipose m while appeal is pending, but what if they try to take over their share and allow me to live n my share..can they take police protection for enterin the property using the preliminary decree copy.

I disagree with the above observation by Mr. Ramesh Singh and Mr.Rama Chandran, as the above person is asking us to find the solution as he wants to be in possession in that property. In his query he all ready mentioned that his both sisters got married. At the time of marriage his father spent money for marriage of his daughters. Taking the advantage in the LAW his sister disputing her brother possession. Even for scenario he did not specially spoke that the property is self acquired property or Ancestral Property. Unless he specially mentioned the status of the property we cannot suggest him not to precipitate any litigation as his sisters are rightful owners. No dout the Hon’ble trail court pronounced order in the above matter to distribute the property as one third share, but without observing the judgment we cannot come to conclusion that his sisters are the rightful owners. Even for self acquired property if his father died without executing any WILL it is not mean that his daughters having right. Unless without clear observation from the judgment no one can suggest against his client opinion. The suggestions must be in very sound not wage. If the client comes before us we are suppose to give him as he request. But our suggestion should not be useful for the opposite party. 

V E Manoj Kumar

Advocate

Cell No. 86 86 15 92 92 

 

 

The unregistered settlement deed executed by your father is valid. why the court did not accept the settlement deed. You can fight before appeal court with the above document. If the court come to conclusion that the document is genuine then the Lower Court will be setaside by the appellate court. you proceed with the appeal. While filing the appeal before the appellate court you can ask the court to stay the lower court order, It would be better for not to take any steps by your sisters in this situation. 

V E MANOJ KUMAR  M.B.A.,L.LB.,

ADVOCATE

CELL NO 86 86 15 92 92

 

Dear Mr. Varun,

1. The value of the property has no bearing to the question whether your sisters are entitled for a share in the property left behind by your father.

2. Similarly,  your having spent on the maintenace and construction of house or spending   part or full expenses for the marriage of your sisters or your having  spent for the medical expense of your parents has no consideration for partition.

3.  The failure to register the settlement deed by your father in your favour, is a big mistake. But at least he could have left a WILL.  Which also he did not do.  So, as per law, you do not have exclusive right for the property.  Your sisters have equal share.  That's why the Court has ruled that each of you should get 1/3 share in the property.

4. Legally, there is no infirmitty in the order passed by the Court.  Your chances of winning in the Appeal is next to NIL.

@ V.E.Manoj Kumar: I welcome your disagreement with my views.  But please answer one by one the following queries:

(a) According to which provision of law, in the fact situation of the case, the sisters can be denied their right in the property on the ground (i) that at the time of marriage their father spent money for marriage.

(b) How and in what manner the position will get altered if the property was self-acquired or ancestral.  Legal provision therefor.

(c) Under what legal provision you say that  Even for self acquired property if his father died without executing any WILL it is not mean that his daughters having right?

(d) Without seeing the decision, if   we cannot come to conclusion that his sisters are the rightful owners or not, on what basis you simply said that the matter can be appealed? 

(e) Have you read the decision and come to a conclusion that the sisters are not entitled to their share in the property?

(f) You are absolutely right when you say that The suggestions must be in very sound not wage(vague).  But that is precisely the point - how legally sound is your suggestion? and on what legal basis?

(g) You say that If the client comes before us we are supposed to give him as he request. But our suggestion should not be useful for the opposite party.  I TOTALLY DISAGREE WITH YOU.  THE CLIENT BEING NOT A LEGAL PERSON CAN DESIRE MANY THINGS.  AS A LELGALLY TRAINED BRAIN, WE SHOULD ADVISE HIM/HER AS TO WHAT IS LEGALLY CORRECT.  IF THAT LEGAL POSITION IS IN FAVOUR OF THE OPPOSITE PARTY, THAT SHOULD ALSO BE TOLD TO THE CLIENT.  NOT TELLING THE CORRECT LEGAL POSITION WILL AMOUNT TO CHEATING OF THE CLIENT.

Hope you will come up with your legally sound answer to the above queries (a) to (f) of mine.

Here the question is whether settlement deed executed by father in favor of the son be considered as his last Will with regards to the property in question or not. There's no specific format for making Will by the testator any written document that show the intention of it's maker to give the property in favor of a particular person only will be considered as his last Will valid by all aspects if it was done with free consent, without any force, undue influence or fraud. The trail court must have made some observation on the settlement deed and if it come to conclusion that it was not made by free consent and cannot shows the real intention that the property should go exclusively to the son, than the appeal may fail. However, if the trail court ignored the settlement deed completely and just divided the property amongst all children of the deceased than the Appeal in higher court can get the order of the trail court set aside. Appeal against the civil court of sub judge lies in district court and for district court in high court.

hi.
thanks for all replies . few points to add.
1. it is  a settlement deed and not a will. it is not a settlmened deed to be considred as a will as stated above. settlment deed was marked as document in the trial doc and it was not ignored.

sorry,unable to post judgement copy in online forums here due to privacy issues.

even if with chances of NIL for appeal in high court, and if i get it filed, how long can i continue to be i possession and should i expect the opposite party to intrude or take their share possession while the appeal is pending? some lawyes say, the disposal rate of appeal is 10yrs .

 

When the plaintiff himself does not aver the settlement deed to be a WILL and it is not registered there is no ground at all for filing an Appeal; it is another matter if the author wishes to prolong the litigation!

I disagree with Sri P.Venu Garu  and agree with Sri Vijay Raj Mahajan Garu. In trail Court if a party pleads that the document is admissible in evidence by plaintiff, if the court agree with plaintiff the court can look into the document filed by plaintiff and pronounce judgment. The agreed party basing on the admissibility of the document he can file appeal contending that the document is inadmissible in evidence, the duty of the court is to see the factual plea raised by the appellate before the appeal court and should consider his contentions and should pronounce the judgment. Where the enquiry is not necessary the appellate can raise substantial question of Law or Factual plea. Now coming to the case of Mr.Varun Gopi, his advocate would have not taken a plea that the document itself a WILL, but this plea can be altered by the appellate and ask the court regarding the status of the document where the enquiry is not necessary by the court. The appellate can raise that due to due deligence his advocate did not raise the plea before the trail court. 

V E MANOJ KUMAR  M.B.A.,L.LB.,

ADVOCATE

CELL NO 86 86 15 92 92 

the intent of the author seems to be clear. he has lost the case and seem to have less confidence with appeal for the facts that he only know. and looking for ways to continue his possession with a frivolous litigation.

for my understanding - is t even possbile in these days of judicail system to drag appeal for years? we come across such several cases of frivolous cases especially in land litigations to harass others, but just want to know what can the oppostie (winning) party usually do when such kind of frivolous appeals are filed and unable to take possession.

The purpose of this forum, in my considered view, is to suggest the legal elements involved in the facts and issues they have posted. It is for the authors themselves to take informed decisions.

So also, it cannot be the objective of this forum to be a helping hand either for the practising advocates to seek and secure clients or for the interested litigants to further vexatious litigations.

I am sorry. My observation has been in the general context of the query itself and some suggestions as to how the litigation could be further prolonged.

@ V.E.Manoj Kumar: Would you be kind enough to attend to my above specific queries also?