Regarding partition suit

Teacher

Dear Experts, I would be grateful if you can provide me the answer to a question which is bothering me for some time now.

Mr. X has stupidly made a mistake in a counterclaimed partition suit wherein  he has asked for a share which is much less than what he is legally entitled to get. There was a document lying with the court which Mr. X's lawyer did not care to check and which would have given him a much higher share. Now that trial has begun and presently the suit is in plaintiff's evidence stage, the plaintiff being the other person who made another suit and on whose suit Mr. X's counterclaim is based. Mr. X is wondering what is the best way to correct this mistake?

 

a) To file an amendment to correct the share part? But since Trial has commenced it probably will be refused.

 

b) To correct the mistake in his Examination-in-chief. Will this do the job?

 

c) Any other way?

 
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Advocate Madras High Court & Legal Consultant Chennai Law in Law Firm. +91-9698884779

Necessarily, you have to file amendment petition to correct the counter claim. Correction/amendment can be permitted at any stage of suit to meet the ends of Justice as well as to avoid multiplication of litigation. The condition is that it should be a genuine and should not affect the root of the case.


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Advocate

Sandeep,

Mr. X need not wonder...... file an amendment petition briefing his exact share which he did not do at the very 1st instance.

Rajesh Kulkarni

Advocate


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advocate

amendment petition will solve the issue but how come a major mistake was done as the case itself for the partition suit 

from now on make sure to check all the documents before submitting the evidences to court


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Advocate

Amendment petition can be filed any time in the course of the proceedings which is vitally needed for justice.


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Teacher

Thank you to all the Experts who has responded.

 
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Teacher

Also, if Mr. X puts in a different lawyer now then will the reasoning of previous lawyer's analysis not correct and/or previous lawyer not vigilante in time will work as acceptable grounds for pushing the above amendment in the above partition suit? It is quite evident that the previous lawyer has in the beginning declared the default state that is in absence of any document which should be the worst case scenario. Common sense says that if there is a document from which there is even the slightest chance for client to benefit then it should be pursued and stressed upon. No wonder the other defendants are very happy with Mr. X's suit as they stand to gain by it probably at the expense of Mr. X

 
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Advocate

1. You shall have to file the ammended petition for correction of the mistake,

 

2. The Court may not be interested to know why did the mistake occur or who is responsible for the said mistake to allow the ammended petition. 


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Advocate/Attorney

If you have missed to file a document contributing some share to the partition, you can file amendement petitoon. But the issue is different here.  

But you say that you have by mistake failed to note your correct share.  Assuming that you are hindus, the percentage of shares are already fixed in the Acts, Rules and circulars.  You cannot claim a seperate share for yourself. 

 
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Teacher

Sir, the property under question is not ancestral but came from Mr. X's grandmother. There is a Will of this grandmother where Mr. X's father was the major beneficiary which was not probated but is still available for Letters of Administration if required, though all witnesses are dead.

Mr. X's father did a compromise Family Settlement (unregistered) with his brother wherein he got slightly less than the Will but still around75% of the property to live and enjoy.Now Mr. X has seen plenty of citations on the internet that an unregistered Family Settlement can also be used to enforce partition on its basis. A landmark judgement  in this is the one regarding Kale & Others vs Deputy Director Of Consolidation ... on 21 January, 1976.

Therefore Mr. X is thinking that it is sheer stupidity to ask the default partition basis in the beginning i.e. without any Family Settlement or Will. So, Mr. X now wants to amend his petition and ask for partition on the basis of Family Settlement which has been active for the past 50+ years. 

But problem is that this advocate is saying that it will not be allowed by court due to the provisio to Order 6 Rule 17. Mr. X does not want to withdraw his case either. Hence this query in this forum.

 
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