Hi,
I wanted to know the stand of the courts in following situation.
Daughter filed a case in March, 2013 for the partition saying that are joint family properties of her father and she and her family constitute a joint Hindu Undivided Family governed by the Hindu Mitakshara School of Law and the Hindu Undivided Family is in joint possession and enjoyment of the suit schedule properties. She, as a coparcener of the joint family is entitled to 1/8th share in the Scheduled ‘A’ Property and Scheduled ‘B’ Property. But in one of the para of plaint she also mentioned that her father bought these properties on so and so date.
I am the third party to the case and bought one of the property in 2006. Earlier I filed IA for rejecting the plaint for insufficient court fee saying that the properties are not the joint family properties of father. It was self-acquired properties (referring that para of the plaint where she has mentioned that it was bought by her father) and the family is not a joint family and in joint possession of these properties since it is admitted that one of the property was sold to me in 2006.
Based on the averments in the plaint and the arguments of the plaintiff, the trial court rejected my IA and passed an order dated 13/08/2015 with following view
- It is well settled that the question of valuation of the suit and sufficiency of Court fee paid on the plaint has to be decided based on the averments of the plaint. As such, it requires for this Court to consider the plaint averments at first instance.
- The plaintiff has maintained this suit for partition claiming her 1/8th share in the schedule properties and for other reliefs including declaration that sale deed dated 03.06.2006 and gift deed dated 05.07.2013 are not binding on her.
- The pleadings of the plaint indicate that the plaintiff has maintained this suit for partition and for other reliefs on the ground that the schedule properties are the joint family properties of her and defendants No.1 to 9. It is the case of the plaintiff that the schedule properties are the properties purchased by her grand father.
- Further it is to be noted that the plaintiff has not sought for cancellation of sale deed or gift deed in question. On the other hand, she has prayed to declare that such documents are not binding on her.
I have challenged the said order which is pending in high court from long time.
While all this, I have filed another IA dated 2/2/2016 based on the Hon’ble Supreme Court’s ruling vide its judgement in Prakash v/s Phulavati reported in 2015 AIR SCW 6160 because in this case father died in 1998. Court has accepted the IA and dismissed the case.
Daughter who filed the case challenged the order of second IA in high court that she has never said that the properties are her ancestral properties and admitted in her RFA that it was self-acquired properties of father. She has not mentioned about the earlier IA and finding of the court on that.
What will be the court stand? Did she file a false affidavit earlier that the properties are her joint family properties? Will HC reject the case and initiate criminal proceeding against her for misleading the court?
Thanks and Regards