Partition
basavaraj shiromani
(Querist) 21 April 2013
This query is : Resolved
Partition suit was decreed in the year 2003. after FDP, EP was filed in the year 2010. The lady party to the suit wants to get the benefits of Sec 6 of HSA for enhancement of her share in the joint family.
Whether she is entitle to get benefits of amended act at the stage of EP also ?
prabhakar singh
(Expert) 21 April 2013
As the rule goes an executing court can not go behind the decree,so it can do nothing more than executing the decree as the same is.It is executing court with no power to adjudicate a fresh.
Hence my answer is in negative.Fresh suit would be required now.
basavaraj shiromani
(Querist) 21 April 2013
Thank you Prabhakarjee.
Whether the FDP is the conclusive ? Under teh changed circumstances of law amendment, and noticed the same before the court, what would be the result. Because in my case up to the final decree proceedings there was no change in law. But Subsequently in the year 2005 the law has changed it view regarding woman rights are concerned. Therefore at the Stage of EP, when she came to know the change of law, how the court can grant the halve on the basis of FDP by overriding rule of law ? IN Prema V/s Nanjegouda and othere it was decided that as per the amended act, she is entitle for enhancement of her legitimate share. There are also so many cases observed. My question is Whether FDP is the final and conclusive in a partition suit ? Unless and until the share is not decided and handed over to the party, how it reached the finality ? Whether the EP proceedings are not a continuation of the partition suit ?
Suppose if she wants to file to file a fresh partition suit, wherein can she ask for stay of EP proceedings ? So please advise.
Raj Kumar Makkad
(Expert) 22 April 2013
Executing court cannot go behind the decree and moreover the right to ownership/succession is to be decided on the day of demise of the previous owner whose succession is claimed.
The amendment in law shall not benefit your opponents.
