Partition suit -lost case - appeal -tamilnadu

Wishing Happy New Year Mr Rama Chandran Garu. Due to parties December 31st and today, I did not answer to your queries. I will answer to your a to f queries, one by one. out of these i am observing " b" query as below  

(b) How and in what manner the position will get altered if the property was self-acquired or

Ancestral legal provision therefor

Exp:- Before going into the present case, I am answering to the advocate Mr.Ramachandran Garu on his commanding the present explanation is observed. The main query by the above advocate is how the position is altered if the property is self-acquried or ancestral. This is the Legal Position which is in my opinion. I am referring to the a Land Mark Judgment pronounced by the Hon’ble Judge ADARSH KUMAR GOEL., reported in 2009(6)SCC 99 rendered in Prakash Vs Phulawati  that, The Respondent had claimed that a daughter acquired right to all her father’s property by birth, irrespective of the date of his death, whether it is prior to the commencement of the Amendment Act or afterwards. The Supreme Court rejected this contention stating that legislature has expressly made the Amendment Act applicable from 9 September 2005 and only if the death of the coparcener in question is after the said date, the provisions of the Amendment Act will be applicable. Hence, there is no scope for any other interpretation in view of express language of the Amendment Act. Further the Supreme observed that, all that is required is that daughter should be alive and her father should also be alive on the date of the amendment. In the above case father of the plaintiff died on 18/02/1988 and thus, not a coparcener on the date of commencement of the Amendment Act. The Supreme further observed that the plaintiff could not claim to be “the daughter of a coparcener” at the time of commencement of the Act which was the necessary condition for claiming the benefit. The final observation by the Apex Court that if the daughter wants to claim any share in ancestral property the daughter should be alive and her father should also be alive on the date of the amendment. In case of Self acquired property the Legal Position is different.

V E MANOJ KUMAR  M.B.A.,L.LB.,

ADVOCATE

CELL NO 86 86 15 92 92

Dear Mr. Manoj,

The property is in Tamilnadu.  The daughter in a hindu family has already attained the co-parcenary status in Tamilnadu as early as in the year 1989 itself, due to the Hindu Succession (Tamil Nadu Amendment) Act, 1989, even before the coming into force of the Hindu Succession Amendment Act, 2005 of the Central Govt.

Therefore, the daughters in a hindu family of Tamilnadu are not at the mercy of the Central Amendment to get the co-parcenary status.  Therefore, for the present query, whether the property is ancestral or self-acquired would have no bearing.

Therefore your wanting to know whether the property is ancestral or self-acquired has no relevance, as far as the present query is concerned.

I would be eagerly waiting to know the answer to the remaining queries.

Mr Ramesh Singh sir as per the suggestions by you to refer Mulla’s Principle regarding Unregistered deed. Thanx for your advice.  I observed that, in the above case father had executed settlement deed in favor of his son by excluding some of the legal heirs. Whether the said unregistered settlement deed is valid is the question here, my answer is valid by the principles I observed. I am referring to a ruling PUNJAB HARAYANA HIGH COURT reported in Ashok Kumar Vs Anil Kumar decided on 18th October, 2012 rendered by Hon’ble Justice L N Mittal speaks that basing on the pleadings in the above case the court observed, the defendant was looking after the old and ailing father and also his father was stained with his another son, in view of services rendered by his son (defendant) his father gave property to his son through unregistered settlement deed. Now the point in this case the court whether should look into the document filed by defendant i.e., unregistered settlement deed executed by his father , the court observed that it can look into the document, though the settlement deed is not registered. The court further observed the concept of family settlement among close family members in Hindus is well recognized by the Courts. 

V E MANOJ KUMAR  M.B.A.,L.LB.,

ADVOCATE

CELL NO 86 86 15 92 92

Respected Mr Ramachandran Garu

(d) Without seeing the decision, if   we cannot come to conclusion that his sisters are the rightful owners or not, on what basis you simply said that the matter can be appealed?
 

Exp:-

Due to busy with clients I did not respond to your pending queries, forgive for the delay. Before going into the case of Mr.Varun Gopi, I am giving explanation to query (d) as follows;-

The order pronounced by Lower Court can be challenged by filing appeal before appellate court. In the appeal court the aggrieved parties request the appellate court to a formal change to an official decision. The main appeal court functions on a process of error corrections as well as a process of clarifying and interpreting the Law.  Before 19th Century in Common Law Countries there is no opportunity to file an appeal by the aggrieved parties. The Main function of appellate court is that it will review the question of Law and do not conduct the independent fact finding.

Now coming to the case of Mr.Varun Gopi queriest in the above matter, Mr Varun Gopi lost his case before the trail court,  though he was in possession of the property. Mr.Varun is not the stranger to the property to say that he is in illegal possession. In his query subsequently he specifically mentioned that he was looking after his father on his love and affection, his father executed unregistered settlement deed. No dout Mr.varun did not post his Lower Court order copy before us, but basing on the averments mentioned in the query and his subsequent query, his intention is that Mr.Varun is not interested to share the property with his sister. Under those circumstances I gave my opinion and suggested him that he can file appeal before the consent appellate court.  

Further the explanation given to Mr Ramesh Singh by me a day ago, it clinches the authority pronounced in different version that unregistered settlement deed can be seen as referred by above judgment supra, it gives the opportunity to Mr.Varun to file appeal before the consent court.

V E MANOJ KUMAR  M.B.A.,L.LB.,

ADVOCATE

CELL NO 86 86 15 92 92 

Respected Ramanchandran Garu

(a) According to which provision of law, in the fact situation of the case, the sisters can be denied their right in the property on the ground (i) that at the time of marriage their father spent money for marriage.

Exp:- 4th Line of my reply message I specifically stated:-

At the time of marriage his father spent money for marriage of his daughters. Taking the advantage in the LAW his sister disputing her brother possession.

The High Lighted lines will reveals that I did not say that his sisters are not rightful owners, when the marriage was performed by his father, the sisters are disputing by taking the advantage in the LAW means they are rightful owners.  The only issue should be consider here is though his father executed unregistered settlement of deed, his sisters are disputing the document due to non registration which is barred under section 17 of Registration Act. 

V E MANOJ KUMAR  M.B.A.,L.LB.,

ADVOCATE

CELL NO 86 86 15 92 92

Respected Ramachandran Garu

(g) You say that If the client comes before us we are supposed to give him as he request. But our suggestion should not be useful for the opposite party.  I TOTALLY DISAGREE WITH YOU.  THE CLIENT BEING NOT A LEGAL PERSON CAN DESIRE MANY THINGS.  AS A LELGALLY TRAINED BRAIN, WE SHOULD ADVISE HIM/HER AS TO WHAT IS LEGALLY CORRECT.  IF THAT LEGAL POSITION IS IN FAVOUR OF THE OPPOSITE PARTY, THAT SHOULD ALSO BE TOLD TO THE CLIENT.  NOT TELLING THE CORRECT LEGAL POSITION WILL AMOUNT TO CHEATING OF THE CLIENT. Hope you will come up with your legally sound answer to the above queries (a) to (f) of mine.  

 

Coming to the above discussions regarding your queries a to f,  I replied in the above opinion. Now as you not requested me to explain about (g) query, but I want to suggest you my opinion in the above query. Mr Varun Gopi is not a stranger to the property. He is one of the Legal  owner to the property. No dout due to some reasons he lost his case in Trail Court, but we cannot decided that he is not having right in the property. Under those circumstances only I opined and replied that our suggestions should be useful for our client but not for opposite clients. Surely if a client is approaching us with false cases, if they ask us to misuse the Judicial system, it is our duty to warn them and such type of Vexatious and meritsless suits should not be filed before the Hon’ble Court as we are the incharge of the cases along with Judicial Judges. I hope you will observe my conduct and waiting for your valuable replies which is useful for my growing carrier.

V E MANOJ KUMAR  M.B.A.,L.LB.,

ADVOCATE

CELL NO 86 86 15 92 92

@manoj sir,
the original author doesnt state that he has lost his share of property instead he has a bad intentin to usurp the entire property under the name of possession and appeal .
he is only trying to make his sister devoid of their share from what was posted.

Mr.Varun Gopi query is solved and he is happy with my replies and he liked the replies which I sent . Mr. Ramachandran Garu queries were replied, now i am waiting for his valuable suggestions.

Mr.Ramachandran Garu if there is no any suggestions by you in this conservations then you are admitting with my observations. In this context I am referring to a ruling of Supreme Court and that too by a 3 Member Bench in a ruling reported in [1956 S.C. 593]34 : AIR V 43 C 103 Oct. rendered by Hon’ble Justice S.R.DAS, VENKATARAMA AYYAR, & IMAM rendered in [Nagubai Ammal and others Vs B.Shama Rao and others]6 in Civil Appeal No. 216/1953 decided on 26-04-1956: 60 years ago observed that the admission made by a party is admissible and best evidence, unless it is proved that it had been made under a mistaken belief and has been placed upon the Judgment in SLATTERIE V. POOLEY (1840) 6M & W 664, where in it had been observed

"what a party himself admits to be true may reasonably be presumed to be so"

V E MANOJ KUMAR  M.B.A.,L.LB.,

ADVOCATE

CELL NO 86 86 15 92 92