partition suit

Case BriefsHigh Courts

Madras High Court: G. Jayachandran, J., the instant suit was filed with regard to the relief of partition and permanent injunction from alienating or encumbering the suit property.

Instant suit was filed for partition by daughters of Late Palanisamy Gounder against his sons was dismissed by the trial court while upholding the validity of the release deed executed by the plaintiffs.

Aggrieved by the above decision of Trial Court, the appeal was preferred by the plaintiffs.

Daughters of Palanisamy, who are the plaintiffs in the suit under appeal relinquished their 2/5th share in the property of their father Palanisamy and executed a release deed on receipt of Rs 2,32,060/- each in favour of defendants 1 to 5, who are their two brothers and the legal heirs of their deceased brother. The sale deed and the release deed were registered.

It was alleged that the above-stated release deed was obtained dishonestly by misleading the daughters and no money was received.

Plaintiffs, later cancelled the release deed and got the cancellation deed registered. After issuing notice seeking partition, suit filed claiming 2/5th shares.

Point for determination:

Whether the Trial Court finding about the validity of the release deed to dismiss the partition suit is sustainable under law and facts?

It was contended by the plaintiffs that they were criminally coaxed to sign the documents. In the cancellation deed, the plaintiffs were made to affix a thumb impression and signature without explaining to them about the nature of the document. Along with this, they were not paid any amount but the deed was executed.

Plaintiffs came to know about the execution of the release deed only when they applied for an encumbrance certificate.

It was expressed that by filing the partition suit, the plaintiffs disowned their own document namely the release deed duly registered and presumed to be an official act performed regularly.

If the terms of contract reduced into writing and duly registered is sought to be excluded by oral evidence, the burden is on the plaintiffs to adduce evidence sufficient to exclude the written evidence, as per section 92 of the Evidence Act.

Sections 91 and 92 proviso (i) of Indian Evidence Act, clearly lay down the rule when written evidence could be excluded by oral evidence is permissible.

Plaintiffs could not prove that the release deed was executed by misleading them and the consideration in the release deed was not aid to them.

Bench held that without declaring further relief to declare the sale deed in favour of 6th defendant and release deed as null and void, the suit for partition declaring the right in the suit property was prohibited under Section 34 of the Specific Relief Act.

Section 34 of the Specific Relief Act:

  1. Discretion of court as to declaration of status or right:— Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Plaintiffs after executing a release deed, cancelled the same without any notice to the beneficiary of the release deed and later without any further relief of declaration in respect of those deeds, the suit for partition was filed. When Section 34 of the Specific Relief Act, restrains the Courts from entertaining suits filed for mere declaration as to right when the plaintiffs are able to seek further relief, and same omitted to do so.

Therefore, for the reasons stated above, this Court confirmed the decree and judgment of the Additional District Court.[Tmt. Karuppathal v. P. Ponnusamy, 2021 SCC OnLine Mad 677, decided on 12-02-2021]

Case BriefsHigh Courts

Madras High Court: G. Jaya Chandran, J., expressed that the individual property can blend with the ancestral property or with the joint family property but not vice versa.

Factual Matrix

In the present matter, it has been stated that the parties engaged in the dispute were descendants of K.N.T Manickam Chettiar. During the lifetime of K.N. Thandavaraya Chettiar, he and his 6 sons entered into a partition deed and got the same registered. Ancestral Properties and the properties accrued through joint family members exertion were divided into 7 lots put under schedule “A” to “G”.

Further, it was added that Schedule “A” was left to parents Thandavaraya Chettiar and his wife Unnamalaiammal, and later after their death to be divided among the 6 sons after clearing the parent’s debts if any.

Manickam Chettiar was allotted properties under “F” schedule and later the said properties were divided into 8 lots under schedule “A” to “H”. Properties listed under ‘A’ schedule was allotted to K.N.T Manickam Chettiar and the ‘B’ Schedule properties were allotted to his son M. Sivasubramaniam. On the demise of K.N.T Manickam Chettiar, properties left by him were divided amongst his children, after which M. Sivasubramaniam was allotted properties listed under Schedule ‘A’.

Sivasubramaniam after getting married had a son named ‘Saravanan’ and a daughter ‘Dhanuja Murali’. Later Sivasubramaniam re-married and from his second marriage he had a son ‘Manikandan’ and two daughters Kavitha and Vidya.

Present Suit by Saravanan for Partition

Sivasubramanian, Mnaikandan, Dhanuja Murali, Kavitha Senthil  and Vidhya Venkataragavan are the defendants. Saravanan contended that ‘A’ and ‘B’ schedule properties are properties in the name first defendant are ancestral properties. ‘C’ Schedule property purchased in the name of First Defendant Sivasubramanian is from out of joint family income.

Trial Court had dismissed the suit holding that the suit properties were not joint family properties and against the said dismissal, the present appeal was filed.

Point for Consideration

Whether the suit properties are ancestral properties to devolve upon the plaintiff by survivorship or it is a self-acquired property acquired by the 1st defendant to dispose of it as self -acquired?

Analysis, Law and Decision

The three categories of properties stood in the name of Sivasubramanian and one property not included stands in the name of Saravanan, who is the plaintiff.

First Category Property: It is the one that devolved upon Sivasubramanian when his father and others divided the ancestral and joint family property. This property is shown under Schedule ‘A’.

Second Category Property: It is the one devolved upon Sivasubramanian under the petition deed between him and his siblings.

Third Category Property: It is the property purchased in the name of Sivasubramanian in the year 2004 upon which, he had constructed a house and the property purchased in the name of Saravanan and construction put upon it.

Property in the name of Sivasubramanian alone is the subject matter of the present suit. Plaintiff excluded the property which stood in his own name and wanted to retain it as his self-acquired individual property and had contended that, it does not form part of the joint family property. Sivasubramanian’s daughters contended that the ‘C’ schedule property in the suit was their father’s self-acquired property and the property in the name of Saravanan was the joint family property purchased in Saravanan’s name.

Controversy:

The controversy is in respect to the property purchased and improved in the name of Saravanan (plaintiff) and Sivasubramanian (1st defendant) – Whether it is the self-acquired property of the individual or joint family property?

If any person says property has been purchased in the name of family members from out of joint contribution of the family members, then, the person who asserts the fact, should prove it.

In the present matter, both plaintiff as well as the 1st defendant were able to show their independent source of income for purchasing the property in their respective names.

Bench opined that since the ‘C’ schedule property stood exclusively in the name of 1st defendant and he had shown his independent source of income for purchasing the said property and improving it, the plaintiff cannot have right or share in the said property.

Trial Court miserably failed to note the ancestral nature of the property and other properties getting blended with the ancestral property.

Further to elaborate on the point of devolution of Hindu Male Mitakshara Property, Bench referred to the Supreme Court decision in: M. Arumugam v. Ammaniammal, (2020) 5 CTC 680.

While concluding, High Court held that an ancestral property is always an ancestral property, unless it gets divided among the existing coparceners. Even then, on the birth of a son and after 2005 amendments also daughter the coparcenary opens to them. Hence, Trial Court erred in the way in which it dealt with ‘A’ and ‘B’ schedule properties.

Hence partly allowing the appeal, Court decided that ‘A’ and ‘B’ schedule property are declared as ancestral property and available for partition, defendant’s 1 to 5 are entitled to share schedule ‘A’ and ‘B’ property equally. As far as ‘C’ schedule property, the plaintiff failed to prove that the said property as purchased from out of the income derived from the ancestral property. [P. Saravanan v. M. Sivasubramanian, 2021 SCC OnLine Mad 927, decided on 04-03-2021]

Advocates before the Court:

For the appellants: R. Subramanian, Senior Counsel for Gupta and Ravi

For R1 to R5: V. Lakshminarayanan, for R. Jayaprakash.

Case BriefsHigh Courts

Bombay High Court: R.D. Dhanuka, J., held that relinquishment of properties held by the legal heirs of a person whose properties were self-acquired properties would enure only for those persons in whose favour such deed of relinquishment was executed.

The First Appeal was filed under Section 96 of the Code of Civil Procedure, 1908.

Respondents (original plaintiffs) case was that the suit properties were the self-acquired properties of Late Shripad Pandit who was the grandfather of the respondents. The said properties were purchased in the name of Late Smt. Usha was the wife of Shripad Pandit and the grandmother of the respondents.

Appellants (original defendants) are the uncles of the respondents (original plaintiffs). Father of the respondents expired and after his death, the mother of the respondents who were defendant 4 got re-married.

Respondents stated that the deceased Usha Pandit and Shripad Pandit had four sons and four daughters. After their demise, each son and daughter had 1/8th share therein. Sisters of appellant1 to 3 relinquished their undivided share in the suit property by a registered release deed and thus had no right, title and interest of any nature in the suit property.

Trial Judge declared that the appellants and respondents 1 to 3 were having 1/4th share each in units/apartments reserved for their joint family. It was further held that respondents 1 to 3 (original plaintiffs) are entitled for partition, separate possession of their 1/4th share in the suit property. Court restrained the appellants permanently from creating third party interest to the extent of 1/4th share of respondents 1 to 3 in the suit property and directed that partition of 1/4th share of respondents 1 to 3 effected by appointing Court Commissioner and separate possession of their share be given to them.

In view of being affected with the trial court judgment, appellants filed the present appeal.

Analysis and Decision

A perusal of the judgment and decree passed by the Trial Court indicates that the trial Court though had rendered a finding that the suit properties were inherited by the parties had rendered perverse finding that the suit properties were co-parcenary properties and release deed executed by the sisters of the appellants were for the benefit of all the members of the family and not only the appellants.

Trial Judge strongly placed reliance on the judgment of the Andhra Pradesh High Court in the case of M. Krishna Rao v. M. L. Narasikha Rao, 2003 SCC OnLine AP 526 & L. Sundaram and Ravichandran v. Lakshmanana (died)2003 (1) Mh. LJ. 195, held that relinquishment of the right and interest by the daughters of Shri Shripad Pandit and Usha was in favour of the entire family and not in favour of the appellants only.

Co-Parcenary & Not Self Acquired | Erroneous

Trial Judge erroneously proceeded on the premise that the Deed of Release by four daughters of Shripad Pandit in favour of the appellants were co-parcenary properties and not his self-acquired properties.

Bench relied on the decision of the Supreme Court in Kishore Tulshiram Mantrim v. Dilip Jank Mantri,  Second Appeal No. 374 of 2018 decided on 14-8-2018 and opined that the suit properties were self-acquired properties of the deceased Shripad Pandit, all the legal heirs of the said deceased were entitled to equal share including the four daughters of the said deceased who were sisters of the appellants. The daughters of the said deceased thus were free to relinquish their undivided share in the suit property in favour of the other legal heirs of the said deceased exclusively.

Relinquishment of properties inherited by the legal heirs of the person whose properties were self-acquired properties would not enure for the benefit of all the legal heirs of the said deceased but would enure only for those persons in whose favour such deed of relinquishment/release was executed.

 In the present matter, Trial Judge erroneously applied the principles applicable to the relinquishment of undivided share by a coparcener in favour of another coparcener to the properties inherited by the legal heirs of a deceased whose properties were self-acquired.

A perusal of the release deed which was produced on record in evidence executed by the four daughters of the said deceased i.e. Pushpalata, Bharti, Hemlata and Varsha clearly show that they had released all their undivided share right, title and interest in the suit property in favour of the appellant exclusively. Hence respondents 1 to 3 would be entitled to only 1/8th share in the suit property and not 1/4th share. [Shashikant Shripad Pandit v. Kaustubh Subhash Pandit, 2020 SCC OnLine Bom 309, decided on 25-02-2020]

Advocates before the Court:

Girish R. Agrawal for the appellants.

Jaydeep Deo for the respondents 1 to 3

Case BriefsHigh Courts

Patna High Court: Mohit Kumar Shah, J., while addressing the instant partition suit decided on the question as to whether:

transferee pendente lite have a right to be added as parties to the partition suit?

Facts

Facts pertinent to the present case were that the plaintiffs-respondents had filed a title suit against the defendants-respondents.

Plaintiffs and main defendants belonged to the branches of two brothers. The suit property belonged to the daughter of Late Tikam Mahton namely Balkesia who was murdered in 1952 and was issueless.

Husband of Balkesia, who predeceased her, gifted the suit property to her vide registered deed of gift dated 18-12-1928.

After her death, the two brothers of Balkesia, namely Late Ramcharan Mahton and Late Beni Mahton, fought tooth and nail for the suit property with Ram Chandra Mahton, Ram Das Mahton, Tuntun Mahton, Sheonath Mahton and Ram Prasad Mahton who claimed to be reversioners of Late Balkesia.

Second Appeal

Good sense prevailed on the parties and the dispute culminated into a compromise decree passed on 22-07-1958 in the second appeal, where the branches of two brothers namely Late Ramcharan Mahton and Late Beni Mahton were given 8 annas share each of the suit property.

Subsequently wife of Late Ramcharan Mahton namely Quadri Devi fraudulently executed some sale deeds in favour of different persons (defendants/respondents) with respect to more land than what had actually fallen in the share of Late Ramcharan Mahton.

Therefore the plaintiffs/respondents were forced to file title suit.

In the above-stated title suit, plaintiffs very cleverly suppressed the subsequent agreement entered into between the Late Ramcharan Mahton and Late Beni Mahton by virtue of which the entire half share of total land, which fell in equal share of the two brothers as per the decree passed in the Second Appeal was relinquished by Late Beni Mahton in favour of his brother late Ramcharan Mahton in lieu of the cost of litigation and Rs 100 paid by Late Ramcharan Mahton.

After the death of Quadri Devi, plaintiffs/respondents chose to file a Tite Suit for half share of the suit property by suppressing the said agreement and misrepresenting facts. In fact, the son of Late Ramcharan Mahton namely Rameshwar Mahton had also died earlier leaving behind his wife and two minor children who were the vulnerable target for the plaintiffs/ respondents.

Analysis and Decision

Bench stated that there is no quarrel or dispute regarding the proposition of law that no period of limitation is prescribed under Order 22 Rule 10 of the Code of Civil Procedure, 1908 inasmuch as the right to apply under the said rule is a continuous right and application can thereafter be made at any stage till the proceedings are pending.

High Court found that the petitioner admitted that the land n question was sold by Quadri Devi, wife of late Ramcharan Mahton to different persons.

Proforma defendant/respondent 15 purchased one katha of land vide registered sale deed dated 20-10-1982 and proforma defendants/respondents 16, 17 and 18 purchased one katha of land vide sale deed dated 14-12-1982.

Petitioners stated to have purchased one katha of land each from defendants/respondents 15 and 16 to 18 who were defendants 10 and 11 to 13 respectively in the title suit, vide two registered sale deeds, both dated 28-11-2001 and thereafter, they sold the said pieces of land by two registered sale deeds both dated 13-02-2012 in favour of Sanjay Kumar Gupta and Punam Rai.

In view of the above Court referred to the Supreme Court decision in Udit Narain Singh Mahapaharia v. Additional Member Board of Revenue, Bihar, AIR  1963 SC 786.

Thrust of arguments of petitioners counsel was that the transferees in the interest of other co-owners acquiring interest during the pendency of a partition suit filed by a co-owner is a necessary and proper party in a partition suit filed by a co-owner, hence the trial court wrongly rejected the petition of the partitioners.

Court stated that in the present case, petitioners are the transferee pendente lite, however, whether they have a right to be added as parties to the partition suit, is the issue to be decided in the present proceedings.

Bench referred to the broad purpose of Section 52 of the Transfer of Property Act which states to maintain status quo unaffected by the act of any party to the litigation pending its determination since if alienations pendente lite are permitted to prevail, it would be impossible to bring an action or suit to a successful termination.

In the decision of Supreme Court, Marirudraiah v. Sarojamma, (2009) 12 SCC 710, it was observed that courts are not supposed to encourage pendente lite transactions and regularise their conduct by showing equity in their favour at the cost of co-sharers.

Doctrine of lis pendens is expressed in the well-known maxim; ‘pendente lite nihil innovature’ which means ‘during pendency of any suit regarding title of a property, any new interest in respect of that property should not be created.

Section 52 of the Transfer of Property Act incorporates the well-known principle of lis pendens, which was enunciated in Bellamy v. Sabine [(1857) 1 De G&J 566: 44 ER 842].

The above-stated doctrine is based upon expediency and it is immaterial whether the transferee pendente lite had or had not any notice of the suit.

This doctrine had or “had not notice of the suit” has been fully expounded by the Privy Council in Faiyaz Hussain Khan v. Prag Narain, (1907) 29 All 339 PC where their lordship quote with approval the observations of Lord Justice Turner is Bellamy’s case.

In the Supreme Court decision of Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403 it was held that a transferee pendente lite cannot claim his addition in the pending suit as of right, though the Court has the discretion to make him a party, he can be added as a proper party only if his interest in the subject matter of the suit is substantial and not just peripheral.

Court also observed that

“…Courts must be cautious and vigilant and impleadment of a stranger in the partition suit must be for substantial cause and a purchaser pendente lite if impleaded in a partition suit has a very limited right.”

Bench held that, a purchaser pendente lite like the petitioners herein, who have purchased the suit property / a portion thereof from another purchaser/purchaser pendente lite and not from the co-sharer, have no right to equities and thus cannot be impleaded in a partition suit, more so, since the petitioners herein have also alienated the property in question in favour of Sanjay Kumar Gupta and one Punam Rani.

Court added that though the petitioners had already alienated their interest in the suit property vide two sale deeds dated 13-02-2012, before filing the present writ petition, they had suppressed the said fact and obtained a stay, which also disentitles the petitioners to any relief under an equitable and discretionary jurisdiction of the High Court under Article 226 of the Constitution of India.

In view of the above discussion, Court found no infirmity in the impugned order passed by the lower court. [Pushpa Drolia v. Sohrai Mahton, 2020 SCC OnLine Pat 1921, decided on 14-08-2020]

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J. allowed an application under Order 7 Rule 11 CPC filed by the defendant in the subject partition suit. The said application sought rejection of plaint (partition suit) on two grounds — that the suit lacked cause of action and the suit was time-barred.

The plaintiff was the son of defendant’s deceased brother. The property in question originally belonged to Kundan Lal Kapur, the father of the defendant. The plaintiff had brought a suit for partition of the property. The defendant filed the present application for rejection of the suit. It was proved that the suit property was in occupation and possession of the defendant. It was mutated in his name after the execution of three General Power of Attorneys and relinquishment deeds in his favour by remaining heirs of Kundan Lal Kapur, including plaintiff’s father. Also, the said documents were executed in 1979, i.e., more than 36 years before filing of the partition suit.

The High Court noted that the GPAs and the relinquishment deeds were duly registered under Section 17 of the Registration Act, 1908 with the relevant authorities, and therefore they were not required to be proved by an attesting witness as is evident from Section 68 of the Evidence Act, 1872. It was observed: “under the provisions of the Registration Act read with the provisions of the Indian Evidence Act, registered documents ought to be read in evidence. The same carries a sanctity in law and are presumed to have been executed.” Further, “The fact that these documents were executed way back in 1979, i.e. almost 40 years ago and 36 years by the time the suit was filed, itself shows that they have enormous sanctity especially in view of Section 90 of the Evidence Act, 1872.”

Since the GPAs and the relinquishment deeds were all registered documents, the same were presumed to be valid and legal. In these circumstances, the Court held that the plaintiff did not have any cause of action, and his partition suit was therefore rejected. The application of the defendant under Order 7 Rule 11 was allowed.[Rajinder Kumar Kapur v. Madan Mohan Lal Kapur, 2019 SCC OnLine Del 9472, decided on 29-07-2019]

Case BriefsHigh Courts

Calcutta High Court: Tapabrata Chakraborty, J. dismissed a writ petition filed by the petitioner, Dr Kashninath Ghosh Hazra, under Article 226 of the Constitution of India.

The petitioner claimed to be the owner of an un-partitioned land at plot nos. 4933, 4934, 4935 and 4936 of Mouza Sadpur, Block- Kandi, Khatian No. 714, P.O. & P.S. Kandi, Pin 742 137, District- Murshidabad, West Bengal. On 10-02-2019 the petitioner came to learn that the private respondents were demolishing the structures existing on the said property. The petitioner maintained that without taking steps towards the partition of the said property and without obtaining any appropriate sanction plan from the municipal authorities, the private respondents had started raising unauthorized construction including a boundary wall. Aggrieved thereby, this petition was filed.

The Court had passed an interim order on 26-02-2019 restraining the private respondent’s 14 to 20 from demolishing any structure existing on the said property and from raising any fresh construction till the end of April, 2019 or until further orders.

Respondent 14 by filing an affidavit-in-opposition and a vacating application stated that a partition suit pertaining to the said property, being T.S. No. 38 of 2003, was initially filed by Amala Bala Ghosh impleading the petitioner herein. The final decree was passed on 17-01-2014. The said decree was executed and the 3 parties obtained possession of the decretal property in the year 2014. Thereafter, the names of the respondent’s 14 and 15 were mutated and some portions of the said property had also been sold to third parties.

In reply, the petitioner submitted that he had no knowledge about the institution of the said partition suit and the preliminary decree and the final decree were passed ex parte.

The Court, in view of the arguments made by the parties, held that the said property had already been partitioned and hence no direction could be passed in the present writ petition. The Court observed that the grievance of the petitioner was that he was not given appropriate notice for which he could not appear and contest the partition suit. It was opined that such grievance ought to have been ventilated by the petitioner before the competent civil forum. But without taking such steps the petitioner had preferred the present writ petition involving the municipal authorities. In view thereof, the petition was dismissed.[Dr Kashinath Ghosh Hazra v. State of West Bengal, An application under Article 226 of the Constitution of India filed on 19-02-2019, In re, 2019 SCC OnLine Cal 655, decided on 15-05-2019]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of N.V. Ramana and M.M. Shantanagoudar, JJ., dismissed an appeal filed against the judgment of a Division Bench of Madras High Court whereby it allowed a letters patent appeal filed by the plaintiff in a partition suit.

The plaintiff filed a suit in regard to a property dispute wherein he prayed for partition of the subject property. The trial court decreed the suit, which decision was reversed by the first appellate court on an appeal by the defendant. The plaintiff then filed a letters patent appeal thereagainst which was allowed by the said Division Bench. The facts of the matter were that earlier, the defendant and father of the plaintiff were co-defendants in two original suits relating to the same subject property filed against them. In the said suits, the court had decided in favour of the defendant’s title over the subject property. Now, therefore, in the present suit, the defendant claims applicability of the doctrine of res judicata against the plaintiff as the father of the plaintiff was a co-defendant with him in the suits wherein his title was declared over the said property.

The Supreme Court, referring to a plethora of judgments reiterated the principles for the applicability of the doctrine of res judicata. The Court cited Mahboob Sahab v. Syed Ismail, (1995) 3 SCC 693 wherein the Supreme Court considering the applicability o the said doctrine between co-defendants held that the four conditions must be satisfied, namely-

  1. There must be a conflict of interest between defendants concerned;
  2. It must be necessary to decide the conflict in order to give reliefs which the plaintiff claims;
  3. The question between the defendants must have been finally decided, and
  4. The co-defendants were necessary or proper parties in the former suit.

The Court reiterated that if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound between each other.

On the facts of the instant case, the Court found that all the above conditions were not present. Therefore, no res judicata was applicable between the parties. In light of the above and other holdings, the appeal was dismissed. [Govindammal v. Vaidiyanathan,2018 SCC OnLine SC 2117, decided on 23-10-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., dismissed a writ petition filed against the order of the trial Judge, whereby petitioner’s application seeking abatement of partition suit on the ground of death of one of the defendants was rejected.

The main issue that arose before the Court, in this case, was ‘whether the suit can be abated in case of death of either party.’

The High Court observed that Order 22 Rule 1 CPC specifically states that the suit cannot be abated on account of death of either party if the right to sue still survives. There are different procedures given under Rules 1, 2 and 4 of Order 22 CPC which talk about the death of a party, death of one of several plaintiffs or defendants but survival of right to sue and death of one of several defendants or of sole defendant respectively.

The Court held that from a bare perusal of different provisions laid down under Order 22  CPC, it can be reasonably concluded that in cases where either of the party dies but the right to sue survives, there shall be no abatement of suit. Observing that the case of the petitioner falls within the ambit of Order 22 Rule 1, it was held that the application of the petitioner for abatement of the suit had been rightly rejected by the lower court. Hence, the writ petition was dismissed. [Radhu Napit v. Tarapdo Napit,   2018 SCC OnLine Jhar 635, dated 16-07-2018]

Case BriefsHigh Courts

Delhi High Court:  Disposing of an appeal filed in 1985 against a judgment and decree in a partition suit, the Court observed that, “It is really very unfortunate that this appeal has remained pending on the Board of this Court for almost 30 years and has to pass through hands of as many as 75 Hon’ble Judges or so but still the solution to the problem of dividing the property (which happens to be the piece of land measuring approximately 7794.63 sq yd along with super structure) could not be found out to the satisfaction of all the parties.”

The Bench of V.K. Shali, J. observed that, “In the city of Delhi, the prices of land have risen beyond the imagination. As a matter of fact, the prices have become prohibitive to own the house, plot or flat. As a necessary consequence of this, wherever there is a dispute between the co-sharers of a property, effort of one party is to bring the other party to its knees by tiring out its resources and patience so that it becomes almost a distress sale by such a party to the other co-sharer.”

With reference to Sections 2 and 3 of the Partition Act, 1893 the Court observed that “a perusal of the aforesaid section would clearly show that the court can order sale of the property if it is convinced that the division of the property reasonably and conveniently cannot be effected by metes and bounds. In the present case, the Court is of the view that partition of the suit property cannot be reasonably and conveniently affected then the Court has no other option but to order sale of the property. In the present case, the partition by metes and bounds could not be affected for the last 30 years. Therefore, the only alternative is to order sale”.

The Court appointed Senior Counsel Ms Meenakshi Arora as the Court Commissioner and Ms Natahsha, Advocate to assist her for the purpose of conducting an open, transparent and fair sale of the suit property by inviting bids from members of the general public, directing the process to be completed within a period of four months. [Ramesh Dutt Salwan v. Shiv Dutt Salwan, 2016 SCC OnLine Del 2909, order dated May 10, 2016]