Succession Act, 1925, Section 180, Hindu Succession Act, 1956, Section 8 -- Doctrine of election - Partition suit - Will - Maintainability of suit - Though Will is executed in favour of plaintiff, but same is disputed by defendant - Plaintiff therefore, is within its right to choose to come for partition under Hindu Succession Act, instead of claiming her rights under Will..........
Court Fees Act, 1870, Article 17(vi) -- Court fees - Partition suit - Where a joint possession is pleaded by plaintiff in the partition suit on the basis that he/she is a co-owner in law, then Court fee payable u/art 17(vi) of Sch.II of Act is on the presumption of joint possession of plaintiff even if he/she is not in actual possession...........
Court Fees Act, 1870, Section 7 -- Ad valorem Court fees - Partition suit - Plaintiff continues to be joint owner of suit properties - There is no averment in plaint to suggest ouster or exclusion - Since plaintiff is in constructive possession of suit properties, therefore, she is not entitled to pay ad valorem Court fee...........
Civil Procedure Code, 1908, Order 26, Rule 10, 13, 14 -- Examination of Commissioner - Powers of Court - Suit for partition - Report submitted by Commissioner - Court is empowered U.O.26.R.10 CPC to summon Commissioner as witness to examine report in partition final decree proceedings with right of cross-examination to both the parties - U.O.26.R.10 CPC a party has right..........
Specific Relief Act, 1963, Section 38 -- Suit for injunction from interfering in possession of plaintiff over suit property - Subject matter of suit is only possession of plaintiff over suit property, which is duly proved and rather admitted - Plaintiff is not required to prove that suit property fell to his share in family partition - Decretal of suit calls for no..........
Civil Procedure Code, 1908, Order 9, Rule 9 -- Bar U.O.9.R.9 CPC - Not applicable when earlier suit and subsequent suit are for partition, as suit for partition only brings severance of status and cause of action continues till there is actual partition...........
Partition suit -- Plea of Benami Transaction - Defendant failed to prove that suit properties were purchased Benami - Admittedly, suit properties were purchased jointly in name of plaintiff and defendant No.1, who are brothers - Moreover, defendant No.1 failed to prove his source for mobilizing funds - Reason for buying property jointly in name of plaintiff and defendant..........
Suits Valuation Act, 1887, Section 4, 11 -- Valuation of suit - Suit for partition - Filed before Court of limited pecuniary jurisdiction - Trial Court with limited pecuniary jurisdiction can direct plaintiff to value suit as per the guidelines as it is within the jurisdiction of Civil Judge even if material would not have been brought to notice of Civil Judge to direct..........
Civil Procedure Code, 1908, Section 152 -- Amendment of decree - Partition suit - Mistake as to survey number of suit property - Parties do not dispute the fact that particulars sought to be corrected is a mistake - Even there is no dispute between parties regarding identity of property sought to be partitioned - Respondents have no objection to the correction of survey..........
Civil Procedure Code, 1908, Order 8, Rule 9 -- Counter claim after filing written statement - - Partition suit - Cause of action in respect of counter claim accrued to defendants before filing of written statements - Application for counter claim allowed...........
