S N Singh (director) 20 January 2018

Regarding partition suit of grandfather's self acquired property

Dear Sir, 1. A case for partition of property was filed in year 2000 by the grandson. 2. The lower court dismissed the case on the points below: a. adverse possession b. The case of partial partition as the complainant has some property in other city also but the said property was of great grand father's self acquired and the current case was of grandfather's self acquired property. 3. The first appeal in the court of district judge was also dismissed on the same grounds. 4. The second appeal was in the High Court and in the High Court the above two points were cleared but a new point was raised that grandson can not file suit while his father was living. The medical condition of the father was not such that he could have persued the case that is why the case was filed by the grandson. 5. The father of the petitioner died around four years ago when the case was in district judge’s court. Decision is pending in the High Court Kindly suggest what should I do in this situation after waiting for the decision for 18 years. Thanks

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5 Replies

(Guest)

some facts are missing.

generally, there is no such thing like adverse possession on ancestral properties how ever long the property is in possession solely even by only one of the defendant unless there is some family settlement for partition and subsequent relinquishment /sale to a third party had occurred. why was it is considered a adversion possession here and on what facts?

G.L.N. Prasad (Retired employee.) 21 January 2018

When Advocates are handling the case why clients take guidance.

It is true that grandchildren are not stated as belonging to any other type of legal heirs under Hindu Law.

I know the following case which was decreed by Principal District Judge.

a)Grand children filed partition suit, while their father was very much living,

b)when there was a written partition and separation 25 years back,

c)for ancestral property

d)filing another partition suit paying Rs.200/- 'as court fee

e)without impleading the necessary parties,

f)Showing a sale deed executed by Court in furtherance of specific performance suit as that of purchased in Court auction, when creditors filed suit against seller and brought the property in auction.

g)that purchaser of the property who expired on 30-9-73, entered into lease 7 years after his death from 1-4-1980 and was collecting rent 7 years after his death.

Vijay Raj Mahajan (Advocate) 21 January 2018

Now after the death of the father sons become legal Representative of their father in who's behalf the suit was filled, a formal application can be moved in this regard. As far with change of situation, the grandsons now automatically become heirs of their father and claim the property that was inherited by their father from his father which was held as self acquired property of the grandfather by trial court and district court. Based on this situation in the case the High court can allow the partition suit filled by grandsons although on behalf of their father.

S N Singh (director) 19 February 2018

Dear Sir,

The case was not filed on behalf of father. It was wrongly filed by the son and an objection was also raised by opposite party in the lower court but this point was never pressed during further proceeding by the opposite party and judgement was given by lower and first appeal court.

Now, during second appeal the Judge has noted this point and brought this into notice and not by Appellant or defendant advocate.

Second appeal is still not decided on this very point. There must be some cases to regularise such technical deficiency cases. Also I feel that a Judge cannot raise objection to some left out points not determined / raised during the course of proceedings in districtc/ lower courts.