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Sandeep Gupta (Manager)     12 August 2020

Impact of new judgment vineeta sharma vs rakesh sharma

Hi, I would like to know the impact of VINEETA SHARMA Vs RAKESH SHARMA in a particular scenario.

Brief facts are: 

- Plaintiff filed a case for separate partition from her fathers joint family properties.

"The case of the plaintiff in the lower court was that the suit schedule properties are joint family properties of her father. Plaintiff and defendant No. 1 to 9 constitutes a Joint Hindu Undivided Family (HUF) governed by the Hindu Mitakshara School of Law and the Hindu Undivided Family (HUF) is in joint possession and enjoyment of the suit schedule properties. Her father Late Sri. Muraharachari constructed the residential house in the schedule properties out of joint family income and manage the affair of joint family and looking after the schedule properties a kartha thereof.  Therefore, plaintiff, as a coparcener of the Joint family, she is entitled to 1/8th share in the schedule properties"

- Trial court reject the case since father was not alive based upon the I.A filed under order 7 rule 11 based upon the Prakash   v.  Phulavati case. Therefor case was rejected before the evidence stage. 

- Plaintiff filed an appeal and taken a contrary stand in the HC stating that  

“The present suit filed by the plaintiff for the partition in schedule property on the ground that ‘the schedule properties are the self-acquired properties of her father. After the death of her father intestate, the appellant and the respondent 1 to 9 have succeeded to the estate left by late Muraharachari as the Class -I legal hires thereof. But the learned Trial Court without considering the said aspects has passed impugned order.”

- What will happen in such cases in the HC. Will this appeal be dismissed by the HC or it will be sent back to the lower court. Being a defendant how do I go in this case in the HC. 

Thanks and Regards,

Sandeep
 



 4 Replies

niranjan (civil practice)     12 August 2020

the matter will me remanded for fresh trial.

G.L.N. Prasad (Retired employee.)     13 August 2020

Wait for the opinion of other experts also, as there is a misrepresentation to HC.  In the lower court, it was stated that property was a joint family, and in HC appeal it was stated that the property was self-acquired.

1 Like

P. Venu (Advocate)     13 August 2020

The appeal is bound to be dismissed. Appeal cannot be based on different/contrary facts. However, the daughter has a right in the property, irrespective of whether the property is ancestral or self-acquired.

The recent judgment of the case is of no application in the instant case.

1 Like

Sandeep Gupta (Manager)     20 August 2020

Respected Venu Sir,

Thanks for your valuable feedback. I have one more query on the same matter. In the same case one of the defendant has filed the counter claim by admitting the same averments that the schedule properties are ancestral joint family property and therefore as a coparcener she is also entitled for the 1/8 share and prayed to allocate independent possession of 1/8 share. However, lower court has not taken any stand about the counter claim while passing order and dismissed the plaint under order 7 rule 11.

Now that co-defendant has also filed another appeal that their counter claim is not considered but in this appeal they have not taken such contrary stand as taken by plaintiff.

I have two queries.

  1. In the plaint, execution of sale deed in favour of me is already mentioned. So counter claim filed after that by defendant is obviously filed against the property of purchaser knowing that the sale deed in executed and property is in possession of another co-defendant who is a purchaser of the property not against the claim of the plaintiff. Is counter claim valid in this case?
  2. Since in the appeal they have not taken contrary stand means their stand is same as property are the ancestral joint family properties. Both of the appeals were running separately but in last hearing they have requested to merge both of the cases. Now properties are also divided between the family in 2000-01. How do I go about the case. In one appeal plaintiff is now saying that the schedule properties are the self acquired properties whereas  defendant who have filed the appeal still maintain the stand earlier stand as of now.How do I go further in the case?

 Thanks and Regards,

Sandeep

 


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