Regarding partition suit

Necessarily, you have to file amendment petition to correct the counter claim. Correction/amendment can be permitted at any stage of suit to meet the ends of Justice as well as to avoid multiplication of litigation. The condition is that it should be a genuine and should not affect the root of the case.

Sandeep,

Mr. X need not wonder...... file an amendment petition briefing his exact share which he did not do at the very 1st instance.

Rajesh Kulkarni

Advocate

amendment petition will solve the issue but how come a major mistake was done as the case itself for the partition suit 

from now on make sure to check all the documents before submitting the evidences to court

Amendment petition can be filed any time in the course of the proceedings which is vitally needed for justice.

Thank you to all the Experts who has responded.

Also, if Mr. X puts in a different lawyer now then will the reasoning of previous lawyer's analysis not correct and/or previous lawyer not vigilante in time will work as acceptable grounds for pushing the above amendment in the above partition suit? It is quite evident that the previous lawyer has in the beginning declared the default state that is in absence of any document which should be the worst case scenario. Common sense says that if there is a document from which there is even the slightest chance for client to benefit then it should be pursued and stressed upon. No wonder the other defendants are very happy with Mr. X's suit as they stand to gain by it probably at the expense of Mr. X

1. You shall have to file the ammended petition for correction of the mistake,

2. The Court may not be interested to know why did the mistake occur or who is responsible for the said mistake to allow the ammended petition. 

If you have missed to file a document contributing some share to the partition, you can file amendement petitoon. But the issue is different here.  

But you say that you have by mistake failed to note your correct share.  Assuming that you are hindus, the percentage of shares are already fixed in the Acts, Rules and circulars.  You cannot claim a seperate share for yourself. 

Sir, the property under question is not ancestral but came from Mr. X's grandmother. There is a Will of this grandmother where Mr. X's father was the major beneficiary which was not probated but is still available for Letters of Administration if required, though all witnesses are dead.

Mr. X's father did a compromise Family Settlement (unregistered) with his brother wherein he got slightly less than the Will but still around75% of the property to live and enjoy.Now Mr. X has seen plenty of citations on the internet that an unregistered Family Settlement can also be used to enforce partition on its basis. A landmark judgement  in this is the one regarding Kale & Others vs Deputy Director Of Consolidation ... on 21 January, 1976.

Therefore Mr. X is thinking that it is sheer stupidity to ask the default partition basis in the beginning i.e. without any Family Settlement or Will. So, Mr. X now wants to amend his petition and ask for partition on the basis of Family Settlement which has been active for the past 50+ years. 

But problem is that this advocate is saying that it will not be allowed by court due to the provisio to Order 6 Rule 17. Mr. X does not want to withdraw his case either. Hence this query in this forum.

1. Order 6 Rule 17 clearly provides the condition for filing ammended petition being  " no Application for ammendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due dilligence , the party could not have raised the matter before he commensement of trial".,

2. You shall have to show adequate reason for not mentioning the vital fact earlier which you are now claiming,

3. You can show the reason of late detection if no document to this effect has been filed with the petition,

4. Queries touching upon the vital facts in one go help  the experts to suggest properly.  

You can very well file an amendment petition to include the schedule of property which has been discovered at this latest stage, there is nothing wrong in it, if your lawyer is appearing to misguide you in any aspect, you may change the lawyer.  You can very well include the latest schedule in the form f amendment to avoid multiplicity of proceedings by filing a separate partition suit on the latest discovered document.

I have gone through the Judgement you have produced.  As per the judgement it says that the unregistered family settlement is also valid but subject to some conditions.  The conditions are as follows.

The person who is challenging (filing a partition suit—here plaintiff) should enter into family settlement (though unregistered) with bonafide intention without any threat or coercion etc.  And the plaintiff should enjoy the property allotted to him for a considerable period. Once the plaintiff is enjoying the property allotted to him, he cannot take up a contradictory contention or claim or file a partition suit saying that he is liable to more share and the unregistered family settlement is invalid as it lacks of registration.   “Oral arrangement-If permitted-It would operate as an estoppel”.

Hence, in your case I do not know whether the plaintiff has been in possession and enjoying the share allotted to him.  Upon your reply I can answer.  If he is not enjoying the property allotted to him (even part of the property), the present suit is valid one and the unregistered family settlement is not valid.  

Thank you again Advocates K.K. Ganguly, T. Kalaiselvan, Ravinder.P and all the others who has responded. Sir, I tried to keep it very brief in the beginning as people might avoid transcriptts which are very long. There are further issues but at least now I have the idea that amendment is the best way. In fact I drew the attention of my lawyer to all this from before the time of start of trial in this case. He dilly dallyed in the beginning and after trial commenced he said there is problem with Order 6 rule 17 and advised me to sit tight and later say everything in my examination-in-chief.

Sir, I am not a lawyer and cannot be expected to know all legal conotations and pitfalls. In fact thanks to the internet and forums like yours, I am recently learning bits and pieces about this vast legal world. Therefore I would be interested to know whether stating that faulty analysis by lawyer failed to safeguard client's interests in the long run insomuch as his case has now become contra interest can take part of the "due diligence" portion of order 6 Rule 17?

Additionally Advocate T. Kalaiselvan has advised to "file a separate partition suit on the latest discovered document". Does this mean that I should withdraw my counterclaim Partition suit and file a new and separate one instead?

And Advocate Ravinder. P, on the basis of the unregistered family settlement we are all staying in the premises for the past 50 years. Therefore this unregistered family settlement is a compromise document as well as fully implemented and all current possessions are as per this document. Maybe my lawyer chose to disregard this as he was unaware of the validities of even a unregistered family settlement. Therefore as you can see my lawyers insufficient information has put me in quite a bit of a soup.

Again thank you everybody in your efforts to help me out.

Advocate Ravinder. P the Family settlement was made by my father and his other brother on the backdrop of my grandmother's Will presumably to eliminate the necessity and the hassles of probating a Will. Accordingly he was staying in the premises for almost 40 years as per this unregistered document. So as per Kale's case he should have been eligible to his portions as per the settlement? Now I being one of three heirs of my father, I should have asked for my father's portion in the suit property as per this family settlement. Then after that my share should have been one-third from that obtained from my father's share.  There are also other other citations in the internet that are upholding an unregistered family settlement if it was a logical and bonafide document, a compromise document and have been effective for long etc.

But instead my lawyer chose to disregard the family settlement vis-a-vis my father's portion and instead gave him the default state as if there was no family settlement. accordingly not only me but my other two siblings have also been penalised. And other defendants from my father's brother's side are joyful about my plaint,