Ground of appeal - regarding-------urgent
muthusamy
(Querist) 16 August 2010
This query is : Resolved
URGENT
Repected experts
Two of may elder brothers filed a partition suit in two properties (by two I mean the properties for which there are two separate sale deeds) which was dismissed by the
lower court, stating some reasons. One reason being joining some other properties which are not the suit property (property to be divided)
My younger brother had given a statement in the lower court that a property which was bequeathed to him by our father {by way of will} was also included in the suit property.
And he added that there is no objection for him, if the property were divided as per law excluding this property bequeathed to him.
While my elder brother was questioned in the open court about this by my younger brother's learned lower, he replied that the property bequeathed to his brother is a separate one and the present suit properties (two in number) are separate. He added it is wrong to say that the two properties are one and the same.
Next day the same learned lawyer questioned my brother about the property bequeathed to his younger brother by our father. He said it is true that a property bearing the same house number by the municipality was bequeathed by our father and added that it is in the northern side of the suit property.
But the lower court relying on municipal numbers and with out bothering about the boundaries and confusing himself declared that the suit is not maintainable for having added unnecessary property in the suit property ignoring the fact that the property is a separate one and is not really added in the suit property.
IT IS ALSO MENTIONED IN THE JUDGE MET THAT THE ELDER BROTHER HAS HIMSELF ACCEPTED THAT THE PROPERTY BEARING DOOR NO 7 BEQUEATHED BY THE FATHER BY WAY OF WILL IS ALSO INCLUDED IN THE SUIT PROPERTY.
My elder brothers appealed in the high court and the case is pending there.
Soon the case will be listed in Madurai branch of Madras High Court.
In the ground of appeal, in reply to this reason it is stated that
"The lower court's findings regarding Door no 7 are wrong. The lower court has failed to refer to the sale deed where the property is described as comprising in Door no 6 and 7.
"The lower court has confused itself by merely relying on for nos. It has not taken into consideration recitals of boundaries.
"The lower court failed to note door nos are often changed by the municipal authorities.
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My present question is that whether the grounds of appeal regarding this are enough?
While my brother's statement is " the two priorities are separate and it is not true to say that the two are one and the same" the lower court has stated that the elder brother has accepted himself that door no 7 belongs to his brother and door no 7 is included in the suit property.
I feel that in the ground of appeal it should be put in black and whit that the lower court has not taken into account the statement my brother that the two properties are separate and it is not true if it is said that the two are one and the same"
I remain to here urgently the learned experts, opinion in this regard. Can he add the appeal stating this reason while already the ground of appeal had been submitted in the court? or the present statement in the ground of appeal is enough.
Thank you very muchin anticipation
Chanchal Nag Chowdhury
(Expert) 18 August 2010
Are all the properties paternal? If so, how come your Father made a Will of only one property? Was the will probated?
In my view,the will has no value & U should proceed on the basis of partition of the entire properties in the suit itself.
muthusamy
(Querist) 01 September 2010
All the properties are self earned by my father.
He wrote a will and in that he had added that the properties which he may acquire in future after writing this will will belong to the brothers of his second wife.
