Order 39 cpc or partition suit
Mohammed Rizwan Shaikh
(Querist) 30 July 2018
This query is : Open
Hi,
In a Testamentary Petition for the Grant of Letter of Administration in HC Bombay, a Caveat was filed and it turned into a suit. A Notice of Motion was moved by the Caveator for the stay over the flat and other property as these property is the subject matter of the Testamentary Petition/Suit. Hon'ble Justice asked to withdraw it as the court does not have jurisdiction. The NM was filed as per the advice of the Caveator's Advocate. As there is a dispute between the Legal Heirs, is it advisable to file Partition Suit or Suit u/s 39 CPC. The advocate has informed that the LH are denying your rights, if Partition Suit is filed you need to be declared as Legal Heir. The Partition Suit will be pending as Testamentary Suit has not been decided yet. Its better to move Suit u/s 39 CPC for stay over the properties and not to forcefully dispossess. Please advice.
Please Note:
The Caveator is the wife of the deceased who holds the estate.
The Legal Heirs purposely denying the rights of the Caveator and illegally claiming their rights over the property as one of the property has been gifted (Muslim) to the caveator by the deceased.
Regards,
Mohammed Rizwan Shaikh
