Grandson Revives Ancestral Property Partition Suit on Appeal.
13 February 2024
Family dispute >> Family Law | Property Law >> Personal Law | Family dispute over inherited property >> Property & Real Estate
In a recent appellate decision of Surender Kumar Vs Sh. Dhani Ram Through Lrs & Ors., a grandson (hereinafter "Appellant") successfully revived his claim for partition of ancestral property belonging to his grandfather's Hindu Undivided Family (HUF). The dispute centered on whether the dismissal of an earlier suit (CS(OS) 1737/2012) under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) barred the filing of a subsequent suit (CS(OS)418/2016) with a properly pleaded cause of action.
Background and Initial Dismissal:
The Appellant, as a coparcener in the HUF, sought partition of the undivided properties through CS(OS) 1737/2012. However, the trial court dismissed the suit under Order VII Rule 11 for failing to adequately plead the existence of the HUF.
Review Petition and Liberty to File Afresh:
The Appellant challenged the dismissal through a review petition. The court allowed the petition, granting liberty to file a fresh suit under Order VII Rule 13 of the CPC. This liberty crucially meant that the dismissal of CS(OS) 1737/2012 did not operate as res judicata, allowing the Appellant to rectify the pleading deficiencies.
Fresh Suit with Amended Plaint Dismissed Again:
The Appellant filed CS(OS)418/2016, addressing the previous shortcomings by amending the plaint to explicitly assert the existence of the HUF and his coparcener status. Despite the amendments, the trial court dismissed CS(OS)418/2016 under Order VII Rule 11, seemingly reaching the same conclusion as before.
Appeal and Successful Revival:
The Appellant appealed the dismissal, arguing that the amended plaint in CS(OS)418/2016 cured the defects identified earlier. The appellate court agreed. It distinguished CS(OS)418/2016 from a similar suit filed by a respondent as the former sought additional reliefs beyond mere partition. More importantly, the court recognized that the amended plaint sufficiently addressed the HUF's existence, fulfilling the requirements under Order VII Rule 11.
Order and Significance:
The appellate court allowed the appeal, setting aside the dismissal of CS(OS)418/2016. This effectively revived the suit, allowing the Appellant to proceed with his claim for partition and potentially secure his rightful share in the HUF property. This case highlights the importance of proper pleading in property partition disputes and the ability to cure deficiencies through fresh suits granted under Order VII Rule 13 of the CPC.