Main issue in palint for partition under hsa
JP Dubey
(Querist) 25 January 2013
This query is : Resolved
Mr. A took a plot on lease in 1964 and built a house. Died intestate in 1976. Wife died in 1981.Survived by 5 daughters and 4 sons. Lease renewed in favour of all( 2 widows in place of 2 deceased 2 brothers and 5 sisters in 2010. One brother obtained GPA for acting on behalf of all. He also obtained permission from Municipal Corp and despite stay on the same after objection by heirs of one sister who had also died in 2010 constructed additional quarters on the same. Meanwhile the same heirs got the record corrected to include their names in place of the deceased (sister). They also ontained from MC under RTI copies of docs submitted by the (2 brother+ 2 widows)for having the stay on permission withdrawn.
These included:
1. a family settlement on nj stamp paper of Rs.100 and notarised dating back to 2000 where the sisters had allegedly consented to forgo their share on the condition that the other 4 divided the house amicably!( no other consideration and not registered)
2. notarised affidavits 1- dating 1999 by the now deceased sister and 2008 by all sisters forgoing their and their heirs rights in favour of the brothers(&widows).
The query is about the issue to be raised in the plaint for partition that the heirs of the deceased sister now wish to file in Bhopal(house located there).There are two suggestions viz.,
1. i That the family settlement being unregistered and not properly stamped is inadmissible and ii. being critically ill the deceased did not sign any of the alleged docs over 10 years.(which is also true except that her signatures may have been obtained fradulently all on one date in Delhi). Here the onus will be on us.
2. Simply ask for partition under HSA based on the lease deed, and let them put all alleged docs to deny that which we may question.
Anirudh
(Expert) 25 January 2013
Dear Mr. Dubey,
The family settlement mentioned by you at serial No.1 and Notarised affidavits mentioned by you at Serial No.2 above have no legal value at all. On that basis the property cannot go to your brother.
Therefore, the suggestion at (2) above for simply filing a suit for partition is the absolutely correct one.
JP Dubey
(Querist) 25 January 2013
Thank you Advocate Mr. Anirudh as I understand the plaint should be just for partition not making any mention of the alleged documents which have come to our knowledge under RTI.
The defendents would in all probability file the same to contradict our request for partition.At that time only we may challenge the validity of docs. Correct?
Anirudh
(Expert) 25 January 2013
YES, your understanding is correct.
JP Dubey
(Querist) 27 January 2013
Thanks again Adv Anirudh. I'd very much like to contact you particularly if you are from MP. Actually, the plaint has alraedy been drafted by a very senior person but I was hesitent on unnecessarily inviting onus. There is one more point--as I said they ( under GPA) got the lease renewed in favour of only widows of the deceased brothers unwittingly ignoring their children. Can we also ignore them(living abroad)as party to the suit?Actually one of them has witnessed the alleged family settlement. Since the deceased sister never sign any doc before notary at the place or on the dates mentioned- will it be necessary to go in for forensic test - for age of ink etc. One of the sisters has given in writing duly witnessed that the deceased sister has never signed the docs in her presence. None of the sisters however, will join for partition. This is the weakness which often comes in the way of implementing the spirit of such acts.
Raj Kumar Makkad
(Expert) 27 January 2013
You need not to send the document for the forensic lab for knowing the age of link if one of the eye witnesses is ready to depose her evidence thereto.
JP Dubey
(Querist) 28 January 2013
Thanks adv. Makkad. One of the sisters has stated duly witnessed a sr Govt officer, that the deceased sister had never signed any such doc in presence. Being aged perhaps she may not agree to visit the court and stand cross exam. Too much botheration. Also what about making the sons and daughetrs of the deceased bothers lft out of the renewed lease deed, party to the suit? Is is necessary or desired?
Raj Kumar Makkad
(Expert) 28 January 2013
If your sister is unable to move to the court for her evidence, you can get appointed a local commission who shall go to home of your sister with the counsel for both the parties and shall depose her evidence as desired.
JP Dubey
(Querist) 28 January 2013
Thanks. Who all will be the defendents -2 surviving brothers widows of 2 deceased brothers and 4 surviving sisters? But what the sons and daughetrs of the deceased bothers who were unwittingly left out from the renewed lease deed?Is is necessary or not?
JP Dubey
(Querist) 03 February 2013
Thanks Advocate Makkad and Adv Anirudh for valuable advice. I believe that I should make the sons and daughters of the deceased brothers also as party to the suit although they have been left out of the renewed lease deed.
