Ancestral property fresh suit?

Vikrant (Querist) 08 May 2020 This query is : Resolved
Hello Lawyers...
My mother did filed a civil suit for claim of ancestral property against my maternal grandfather in the year 2014 (SUIT FOR DECLARATION) only.
But the Lawyer was not able to prove the case and the suit was dismissed for the reason that " Ancestral nature of the property is not proved". After that she didn't filed any revision or appeal.
It's been 4 years.
My Question is " Can My sister and I file the fresh suit again and start the fresh case from beginning , Will the previous case hurt this case?
2.If yes, then when should we file the case ( Very soon or we can demand our share at any time in our life?).
What should we do? pl guide the right approach....

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Raj Kumar Makkad (Expert) 08 May 2020
The legal proposition of Res-judicata shall come in the way means if the suit stands decided between the same parties earlier on the same issue then no subsequent suit can be filed. As your predecessor in interest in the said property means your mother had already filed the suit proposed by you to file afresh so you are barred to initiate fresh suit. You have stepped your feet in the shoes of your mother.

Vikrant (Querist) 08 May 2020
Raj kumar makkad ji,
Any solution available? or there is no hope.
In suit nothing is partitioned, it was just dismissed due to lack of evidence.
Land is in the name of my maternal grandfather
Or can we file a case after demise of grandfather?
Any solution?

P. Venu (Expert) 08 May 2020
First of all, please enlighten how the property is ancestral. Instead of assumptions and presumptions, please post the simple facts.

Vikrant (Querist) 08 May 2020
Property is ancestral because My maternal grandfather inherited from great grandfather and so on and no partition of property occurred till now.
Property is ancestral only no doubt

P. Venu (Expert) 08 May 2020
If so, what is the ground on which the court gave a different finding? What was the plea of the defendants? Who had been the defendants?

Vikrant (Querist) 08 May 2020
P.Venu sir
The court gave a different finding due the following reasons-
1.The plaintiff(my mother) could not proove that property came from 4 generations of grandfather hierachy.
Although she gave all the evidences but don't know why that happened.
2.Court told the case is not maintainable.Because suit is only for declaration.

DEFENDANT WAS ONLY MY MATERNAL GRANDFATHER NOBODY ELSE
PLAINTIFF WAS ONLY MY MOTHER

P. Venu (Expert) 08 May 2020
Why this haste? Even if the property is self acquired, your mother would inherit her share in the intestate property.

Raj Kumar Makkad (Expert) 08 May 2020
In the given circumstances, as your grand-father is alive, you need to wait and watch for the appropriate occasion. As your mother had filed only for declaration and had not sought the partition so the fresh suit shall be maintainable at the appropriate stage.

Vikrant (Querist) 08 May 2020
P.Venu sir, My maternal grandfather do high discrimination on son and daughter and very rude to my mom.
My mother has done all efforts to convince him to share the property equally. Nothing work sir.
Sir , My simple question is--

My mother is not that much literate and the lawyer she hired fooled her by not handling the suit properly.

Sir, can I with my Sister file a fresh suit against my maternal grandfather now and or in future(MAY BE AFTER DEMISE OF MY MATERNAL GRANDFATHER).

Is there any way sir, like changing the parties or changing the nature of suit which will make it possible for us make the new suit maintainable against my maternal grandfather.

ANY SOLUTION SIR??

Vikrant (Querist) 08 May 2020
Thank you Raj kumar makkad sir , Such a valuable opinion.

Raj Kumar Makkad (Expert) 08 May 2020
You are always welcome Vikrant. Post the query in future as and when you require in this or in any other matter. We shall try to provide our best legal opinion/advice as usual.

Dr J C Vashista (Expert) 08 May 2020
@Vikrant,
You have stated that the suit property is allegedly inherited by your mother as coparcener in her ancestral property.
Your sister has no claim, right, title or interest in the property till it is acquired by your mother and she further devolve/ transfer it in favour of your sister. Hence there is no cause of action in favour of your sister.
In the light of aforesaid, with due respect and for the sake of argument, even in case a fresh suit filed and admitted how does it attract res-judicata u/s 11 CPC wherein parties to the suit (especially plaintiff) is different? Besides this, suit filed by your mother, which is stated to have been dismissed was filed for declaration. (presumably for title).

T. Kalaiselvan, Advocate (Expert) 08 May 2020
The suit for declaration is not maintainable.
Hence it was an incorrect relief that your mother sought through court.
If your mother was confident that it is indeed ancestral property then she should have filed a suit for partition and not for declaration.
Even now she has opportunity to file a suit for partition, it will not be affected by the law of res-judicata.
At least now you can engage an experienced and skilled lawyer to handle your case.

T. Kalaiselvan, Advocate (Expert) 08 May 2020
This property would ancestral property only to your mother and the ancestral status will not extend beyond your mother.
Hence during your mother's lifetime, her children nor anyone are entitled to claim a share or her rights in the property.
As her children you shall be entitled to a legitimate share in the property only after her lifetime and not before that.
Hence neither you nor your sister can file any fresh suit on your own, however either of you can file a suit on behalf of your mother by obtaining a special power of attorney from her to conduct the case on her behalf.

Dr J C Vashista (Expert) 08 May 2020
I fully agree and appreciate expert opinion and advise of Mr. T Kalaiselvan, the earlier suit filed by your mother must have been for partition and not for declaration, but must disclose the fact in subsequent suit.
Engage another local prudent lawyer and proceed as discussed hereinabove.

Vikrant (Querist) 08 May 2020
Thank you experts, especially T kalasleven and Makkad sir. Such a valuable advise.

T. Kalaiselvan, Advocate (Expert) 08 May 2020
Dear Mr. Vikrant, you are welcome for your appreciations.
Dear Vashista Sir, thank you very much for agreeing and endorsing my opinion.

P. Venu (Expert) 08 May 2020
I am afraid that the facts posted by the author Mr. Vikrant is unconvincing. It is inconceivable that an action could have been moved in a court of law for just a declaration that the property is ancestral without seeking any substantive relief.

The profile of the author reveals that during the past one week he has raised any a speculative queries:

- Ancestral property fresh suit?
- Character evidence are admissible in criminal courts?
- Should i file a complaint or not?
- Queries regarding criminal case
- Any cheating in forensic departments?

In some of these queries, as some learned experts have rightly observed, he has chosen to edit and substantially alter the facts and issues.

May be he is putting a test paper for the participants in this platform.

Vikrant (Querist) 08 May 2020
Thank you all the experts for such a great response. P. Venu sir, with due respect, I am person who is stuck in multiple disputes, That's why I have queries regarding different civil and criminal cases.

Raj Kumar Makkad (Expert) 08 May 2020
@Vikrant! None is estopped to raise as much queries as he deems fit but as we all are here just for charity purpose so it generates satisfaction among us if we help the actual needy person. If you are one of those, we have no objection to serve you. You should not mind the observation of one of the experts qua your recent queries.

Raj Kumar Makkad (Expert) 08 May 2020
Vikrant! you are always welcome on this site.

Vikrant (Querist) 08 May 2020
@Raj Kumar Makkad Sir, You are doing such a great work on this Platform by making people aware of their Legal rights. A Big applause especially to you and other hardworking advocates
You are a legal soldier.
Thank you Sir...

T. Kalaiselvan, Advocate (Expert) 09 May 2020
Dear Mr. Vikrant,
You are right that our expert learned advocate Shri R K Makkad, is doing a very great legal service for the benefits of not only innocent litigant and laymen, his advises and opinions are useful even for plenty of lawyers of this forum, thus you have rightly appreciated this legal luminary.
Thank you once again for your appreciations

Dr J C Vashista (Expert) 09 May 2020
You are most welcome Mr. T Kalaiselvan ji.

Raj Kumar Makkad (Expert) 09 May 2020
I pay my heartedly regards towards expert T Kalaiselvan Sir for best regards paid by him to me. One thing I want to clear is that I am just learner of Law and do not possess such expertise to which Mr. T. Kalaiselvan has indicated. I do various mistakes and so request all the experts to kindly indicate those so that I may honestly try to eradicate those errors/omissions/guilts/mistakes etc.

T. Kalaiselvan, Advocate (Expert) 09 May 2020
Dear Makkad Sir,
It shows your humbleness and modesty. No doubt not everyone knows everything, but the fact is that experts like you, and to name a few like Sri Vashista Sir, Sri Ajay Sethi Sir, Sri Venu Sir, Sri Rajendra Goyal Sir, Sri Sudhir Sir, Sri Prabakar Singh, Sri Kumar Doab and few more legal experts who regularly render their legal advises as a selfless social service to the mankind are really doing a great job with your enormous legal knowledge, in fact I am inspired on this which motivates me to contribute a little from my side to join you all in this social service.
Hope let us continue our service till it is possible for us, who knows when the court reopens after lock down is lifted, people like me may not be able to remain in constant touch with the great legal forums like this. Thank you for your for regards Sir.

Advocate M.Bhadra (Expert) 09 May 2020
Is your mother died or alive ?

Rajendra K Goyal (Expert) 09 May 2020
Agree with the advice given by expert T kalaiselvan Advocate and Dr. J. C. Vashishta ji.

It is fact that expert Raj Kumar Makkad ji is doing great job on this site, without any personal interest, just for service / help / guide / advice the needy.

Raj Kumar Makkad (Expert) 09 May 2020
I again pay my humble regards towards all my companion experts and pray to behave like family members so that no bitterness may replace this healthy atmosphere in any circumstances.

Rajendra K Goyal (Expert) 10 May 2020
If property was inherited by your maternal grandfather from your maternal great grandfather, it may not be ancestral property till it was inherited from 4 generations without partition.
Please once again confirm this fact regarding ancestral status.

It would be better to show full case file to some expert local lawyer and discuss in detail.