The partition suit filled by my 2 children age of 10. The guardian of my children is my wife at present as divorice case is pending in the court between and me and wife.
In the partition suit, there are some ancestral property and self-acquired property of mine also included in the scheduled property as all the properties are purchased with the income earned from ancestral property. But I already given my self-acquired property to my sister by gift deed before the partition suit filled before the court.
Also there are some other properties in my grand father's name yet to be partitioned and share of my father should to my father. Both grand father and my father is no more now.. There are 3 sons and 4 daughters to my grand father. The partition suit completely ignores that un partitioned properties between my father and his brother and sisters.
I have identified few defence point to reject the plaint. Please advise
1. Partition should happen first for the properties of my grand father between my father and 2 sons, 4 daughter before this partition. (Hence can we reject the plaint?) Or the plaintiff has to included all other parties involved to partition of my grand father's property first.
2. So that it will be considered as full partition. otherwise it will be considered as partial partition as my grand father's property is not yet partitioned completely.
3. Partial partition is not valid and is not fair and injustice.
4. Partition should happen only on the non-encumbrance property only. As plaintiff is claiming in a suit that the self acquired property had been purchased from the income earned from the ancestral property. So It looks it is encumbrance property. (Hence can we reject plaint?)
4.1 Plaintiff has to prove,if it is ancestral property. Thus the partition suit is only for partition and not for proving self-acquired as ancestral property. it has to be proved in a separate prayer or separate case. No encumbrance property should be added in the partition. (Hence can we reject plaint?)
5. Also there is a property on my mother's name.. Which was purchased in the earnings of my father and mother by doing agriculture. my father is no more.. but my mother is alive.. So My mother has all the rights to dispose the property. but this property is also added as a ancestral property in the partition suit. (Hence can we reject plaint?)
6. The properties in the schedule has been shown are overvalued and it is not correct. (Hence can we reject plaint?)
7. Any other valid points are welcome