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Monday, February 19, 2024

Partition-Joint family property-Appel/ant and Respondents co-owners entered into a family settlement-Appellant was to pay a stipulated sum in consideration of which Respondents were to relinquish their share in the property-Amount not paid by Appellant-Suit for partition subsequently filed by Respondents-Held: ls liable to be decreed as the family settlement was not given effect. Code of Civil Procedure 1908-0rder VIII, rr. 3 & 5-Partition suitAverments made by plaintiff-Not denied by defendant in written statementHeld: Averments made by plaintiff would be deemed to be admitted-Fact admitted need not be proved-Evidence Act, 1872-s.58. 'D Appellants and Respondents were co-owners of joint family property. They entered into a family settlement in terms of which Appellant had to pay a stipulated sum in consideration of which the Respondents were to relinquish their share in the joint property. Appellant did not make payment of the stipulated amount. The question which arose for consideration in the present appeal is whether the suit for partition subsequently filed by the Respondents was liable to be decreed as the family settlement was not given effect.

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1 M. VENKA TARAMANA HEBBAR (D) BY L.RS. A v. M. RAJ AGO PAL HEBBAR AND ORS APRIL 5, 2007 B [S.B. SINHA AND MARKANDEY KA TJU, JJ.] Partition-...

Code of Civil Procedure, 1908 - ss. 2(2) and 97 - Partition suit =.. ·Inclusion of property in, after passing of preliminary decree - Permissibility - Held: Ordinarily a suit . for partial partition may not be entertained - But to do complete justice, subsequent events after passing of preliminary decree can be taken into account - On facts, since the addition of property was sought prior to passing of the decree in Written Statement, failure to pass decree in respect of that property was a mistake of the court .... s. 97 is not a bar to amend a decree to rectify the mistake of the court. Words and Phrases - Decree - Meaning of. Predecessor of respondent filed a suit for _partition, claiming share in the propertx. Appellants-defendants in their Written Statement contended that the plaintiff had only 1/3rd share in the suit property. They also mentioned, about. partition .of cycle business. In an application seeking amendment of Written Statement .also they mentioned about the partition of business of cycle. However, issues were not framed on this point. Trial Court passed a decree d·eclaring 1/3td share in favour of plaintiff. Appellants thereafter filed application under Order 20 Rule 18 rlw s.152 CPC with regard to share of· the parties in the business of cycle. Application was allowed. High Cou-rt set aside the order holding that in terms of s.97 · CPC.1 after the. preliminary ·decree attained finality, additional properties cannot be added for partition

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A B [2008] 16 S.C.R. 904 S. SATNAM SINGH & ORS. II. SURENDER KAUR & ANR. (Civil Appeal No. 7008 of 2008) ·DECEMBER 02, 2008 [S.B. SI...

Partition - Suit for, in respect of joint family property - Jurisdiction of Court to adjust shares at the final decree stage - Preliminary decree passed whereby the parties as well as their father found entitled to 1!4th share each - While partition suit was pending for passing of preliminary decree, father of the parties executed a registered Will bequeathing his share in favour of the respondent and died thereafter - Concurrent ~-findings of fact by Courts below that the Will was genuine - Such finding of fact not challenged - Entitlement of respondent to plead for grant of probate of the Will in the partition suit and consequent re-adjustment of shares vide final decree - Held: Suit for partition stands disposed of only with passing of the final decree - Respondent was entitled to plead for grant of probate of the Will in the partition suit itself and was not required to file a separate suit therefor - However, in ). facts and circumstances of the case, respondent was precluded from claiming more shares on basis of the Will or leading evidence to prove the Will before passing of the preliminary decree - Courts below were thus justified in passing final decree by dividing the joint family property into four equal shares and allotting two shares in favour of respondent on basis of the Will executed by deceased father of the parties.

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[2009] 8 S.C.R. 912 • A MADDINENI KOTESWARA RAO _. V. MADDINENI BHASKARA RAO AND ANR. (Civil Appeal No. 3233 of 2009) B MAY 05, 2009 [TARUN ...