A little back ground
In a suit for 'partition and rendering of accounts", my father being the plantiff & his brother being the defendant, the trial court partitioned the property .In this suit, there was a property which couldn't be divided as such and the court asked the plantiff ( my father) to value this property.After the property was assesed to be of value 'X' by plantiff, the court gave first oppertunity to the defendant to agree to pay half of the sum to the defendant to have that property in his name.Despite many dates given on this a/c , the defendent did not appear in the court and the court then asked the plantif to agree to pay half of the sum and get that property to which the plantif agreed to.The properties were partitioned.But the proper decree by paying the stamp duty is yet to be drawn.
The defendnat appealed to the sessions court against order by the trial court but the appeal was not heard as there was a lack of proper 'decree' meaning the order of the trial court was not drawn by paying the stamp duty, the order against which the appeal was made.The file was returned to the trial court for drawing of the Decree.After litigating for years the defendant ( brother of my father) agreed to pay half of the amount of the stamp duty in High Court where he preffered to go to instruct the trial court to issue order to the platiff ( my father) to pay full amount of the stamp duty.Within one year after both agreed to pay half of the said stamp duty as per their respective share, the plantiff (my father) died.The matter rested there since the last 12 years or so.I was not aware of this development in the high court till now .
NOW
Recently a year back, my sister ( we are only two heir to my father's share ) moved court against me to partition the properties as per my father's will where my father has written that he got these as per order of the trial court in the suit as referred in the first para as above.
I want to ask:
1.Can the 'Will' of my father be executed through court without paying the stamp duty on the said properties and can the trail court have the jurisdiction to hear such suits where the properties in the will are yet to be decreed upon by paying appropriate stamp duty in the name of the person who made the Will?
2.Are not the properties in question remain technically joint in absence of proper decree by not paying the stamp duty?
3.Can Decree be drawn separately as per the respective share? … meaning can I pay whole amount of stamp duty as per my father share ( which will be all most half) and get the decree drawn in my father's name to end litigation with my sister?
4. After 25 years of the verdict by the trial court and all most 12 years when both the parties agreed to pay stamp duty as per their respective share in high court, will the stamp duty be assesed on the valuation of properties which was 25 years back or 12 years back or which is the valuation now?
5.Even if the valuation of the properties done at the present rates, what is the legal status of the property which my father got in his name in the court order by offering to pay half of the sum valued to be “X' at that time?Will that sum shall also increase without considering that the plantiff kept on enjoying 1/2 that propety for 25 years?
