A joint family was divided through a partition deed, and there was no mention of a major property said to have been acquired by father(A) through court auction in their written partition deed in 1973.
The erstwhile Karta (grandfather (A) expired on 30-9-73 intestate leaving
- Wife b)adopted son c)adopted daughter d) own daughter e)own eldest son f) youngest son.(B)
1) Paternal grandson (son of eldest son C) file suitd against his uncle (B) alone seeking partition of the undivided property of his grandfather, when his father was very much living, without making adopted son, adopted daughter, and own daughter of A, class 1 legal heirs in 1999.
2) In 2007 a preliminary decree has been granted by a competent court with a direction to make daughter (natural) as a necessary party while filing execution petition. (The court was not aware as to other Class 1 legal heirs adopted son, adopted daughter as the partition suit is collusive in nature)
Having come to know of the preliminary decree, a third party who is legal heir of real owner filed partition suit, stating that alienation by her undivided son is not binding on her and there was never a court auction, and ex partee decree was obtained on forged documents with fraud.
3) Immediately there was a compromise between B (Son) & C (grand son), and they have included daughter and secured award through Legal services authority and court fee was also returned.
Is it necessary for the real owner to file declaration suit for setting aside the preliminary decree, which was obtained by a grandson against class 1 legal heir.
Issues involved
1)Whether a grandson can file partition suit against his uncle during his father’s life time, though he is not a class 1 legal heir ?
2)What is the effect of not including other legal heirs adopted son and adopted daughter (necessary party) in main suit and suppressing that fact before court.
3) Can a third party can seek for setting aside a preliminary decree obtained in 2007 and what is the effect of their compromise (After compromise, whether preliminary decree is still existing or treated as disposed).
