Partition suit
Querist :
Anonymous
(Querist) 21 May 2021
This query is : Resolved
Late father had sold his self acquired immoveable property in his lifetime.
Apparently he entered into a sales agreement initially with the buyer on a total sales consideration of Rs 50 lakhs which was made using Rs 10 lakhs as alleged black money and Rs 40 lakhs as white money.
the late father then subsequently registered the said immovable property in the name of the buyer for a sales consideration of Rs 40 ( white money )
So there exists an unofficial sales agreement for Rs 10 lakhs plus Rs 40 lakhs ie total Rs 50 lakhs but the registered sales deed at the registry office is for Rs 40 lakhs only.
The 40 lakhs was then deposited into a Bank Fixed deposit.
After fathers death, one of the class 1 legal heirs who is envious of the other heirs has filed a suit for partition and has included the Rs 10 lakhs alleged black money too in the suit for partition? apparently he has a copy of the unregistered sales agreement that shows the alleged black money element of Rs 10 lakhs
Now since the father is no more, he obviously cannot go to court to explain the above. even the buyer denies its existence. that the father disposed his property in his lifetime, how he disposed it only he can answer.
however can one file a suit for partition of alleged black money?
My understanding was this was a prohibited transaction and that no suit lies for the recovery of any benami property ie in this case no one can throng the courts with claims of partitioning black money in a civil court.
Should an IA be submitted under Order 7 Rule 11 ( d ) asking for dismissal of suit/plaint as barred in law ie benami transaction?
Many Thanks
Dr J C Vashista
(Expert) 22 May 2021
Mr./ Ms. Anonymous,
The titleholder (owner) of the property was well within his right to conclude sale transaction for his self-acquired property, accordingly the suit for partition stated to have been filed by one of the LR of deceased is "not maintainable" as there is "no cause of action" against defendants (other LRs of deceased).
If notice has been issued to the defendants / other LRs of deceased, they will have to seek professional services of a local prudent lawyer to contest the suit.
What is your locus standi / concern /problem and identity as you have posted this query as an "Anonymous" author?
Querist :
Anonymous
(Querist) 22 May 2021
I am one of the class one legal heirs in a pool of 3 class one legal heirs .
One of the siblings is trying to vexatiously litigate so do we ask for a dismissal of suit under order 7 rule 11 d or some other rule .?
SHIRISH PAWAR, 7738990900
(Expert) 22 May 2021
Hello,
Claim on the basis of an unregistered sale deed will not survive in the court. Moreover, the buyer is also denying. It is difficult to prove the transaction.
P. Venu
(Expert) 22 May 2021
Suit for partition? When there is no suit property, how could there be suit?
Anyhow, who are the defendants? What is the cause of action?
T. Kalaiselvan, Advocate
(Expert) 22 May 2021
The legal heir who has filed this suit for partition against the other legal heirs is not maintainable because:
1. The property has already been sold during his lifetime by the owner and disposed the sale consideration amount as per his desire and decision.
2. The alleged sale agreement is not authentic document to prove the sale consideration amount and whatever, it was between the deceased owner and the prospective buyer, hence this legal heir who is a third party to this dealing has in no manner any title or interest in this to contest or agitate this dealing, neither his vexatious claim would be tenable in law, it is a false frivolous claim hence court may not consider this third person's claim.
3. The legal heir has no locus standi to file a suit against the other legal heirs seeking partition of the property which is not existing neither the other legal heirs had any interest or share in it during the lifetime of the deceased owner and the se was disposed by the owner during his lifetime.
You are right in your view that you can file an IA under order VII Rule 11 CPC seeking to reject the plaint for the above said reasons besides other reasons that you may rely upon.
