Whether Woman filing suit for partition against IN LAWS entitled to get exemption from payment of court fees?

It appears that in view of the case decided in
the year 2000 by the learned Single Judge (cited supra)
and as there was difference of opinion of other learned
Single Judge the matter of application of the notifications

to the probate proceeding was referred to larger Bench.
The Division Bench, as larger Bench, decided the point in
the case reported as 2008(3) AIR Bom R 820 (Re : Girish
Kanaiyalal Munshi). The Division Bench considered the
following point :-
"Whether a woman litigant who files a petition for
grant of Probate of a Will is exempted from payment of
Court Fees as per Government Notification dated 1st
October, 1994 duly amended by an explanatory
notification dated 23rd March 2000 ?"
6) In the aforesaid case, the Division Bench
considered almost all the cases decided by the learned
Single Judges of this Court in the past, including the
matters mentioned above and considered the view
expressed by the learned Single Judge of this Court who
had referred the matter to larger Bench. The Division
Bench accepted the views of the learned Single Judge who
had made request of reference and held that the petition
for probate of will is neither a petition in relation to any
property in dispute nor it arises out of or concerning a
matrimonial matter. When the larger Bench gave aforesaid
decision and held that benefit was not available, following
observations made at paragraph 26-D.

"26. After hearing the learned Senior Counsel Dr.
Tulzapurkar and the learned Advocate General and
in light of the extensive arguments forwarded on
behalf of the petitioner and the State, the various
judgments of this Court regarding the exemption
from payment of Court fees by women litigants and
several other relevant judgments of this Court and
the Hon'ble Supreme Court, the following issues can
be clearly outlined.
A) . . . .
B) . . . .
C) . . . .
D) Lastly, the words 'property dispute arising out
of or concerning matrimonial matters' should be
given their plain and simple meaning, that is, a
dispute arising between parties to a marriage,
(attention may be brought to the reference made by
Deshmukh J. to the Family Courts Act sub-section (1)
of Section 7, to elucidate the meaning of the term
'matrimonial matters') and should therefore exclude
testamentary petitions wherein not only is there an
absence of dispute, other than in cases when
somebody files a caveat, it is not a matter between
two parties to a marriage."
7) In the case reported as 2013(7) ALL MR 138
(Shrinivas vs. Savitribai) learned Single Judge used the
observations made by the Division Bench at paragraph 26-
D, quoted above, and held that woman litigant, who has
filed suit for partition against her in-laws after the death
of her husband, is not entitled to exemption of Court fees
under th aforesaid Government Notifications.

8) This Court would like to use the observations
made by the Division Bench, quoted above, and also the
interpretation of the decision made by the learned Single
Judge in the case of Shrinivas (cited supra). This Court
holds that when suit is filed by woman litigant for relief of
partition against her in laws, she cannot get the benefit of
the aforesaid Government Notifications as the matter is
not between the woman litigant and her husband and such
matters are excluded due to explanation added to the
Notification in the year 2000. So, this Court holds that no
interference is warranted in the order made by the
learned Judge of the trial Court. In the result, the petition
stands dismissed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.271 of 2016
Harsha Pradeep Patil.
V
Sayankabai Ragho Patil & Others. 
 CORAM: T.V. NALAWADE, J.

 DATE : 13 OCTOBER 2016
Citation: 2017(1) BOM C R 86

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Whether transferee of property can get impleaded in partition suit?

 A transferee gets the right of the transferor and can
pursue those rights only. In this case the transferor is a co-sharer in a partition
and administration suit where a preliminary decree has been passed. The
property has also been proposed to be partitioned in a particular way by the
Commissioner of Partition. The transferee’s right is limited to ensuring that the
transferor’s share, as conveyed to her is properly partitioned in accordance with
the preliminary decree. If the transferor loses interest in the suit then the
transferee by participation in the trial can continue the suit in the shoes of the
transferor, to this limited extent only. I grant such right to the applicant.
GA 1217 OF 2016


IN THE HIGH COURT AT CALCUTTA
Extra-Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SUMARMAL SURANA V BHAWARLAL BHANDARI
 & ORS.

 BEFORE:
 The Hon'ble JUSTICE I. P. MUKERJI
 Date : 14th July, 2016.
Citation:AIR 2016 (NOC)711 Cal

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When court should allow amendment of plaint in partition suit?

 It is apparent that if the suit continues in the form in which it
stands today before the trial Court, the same is most likely to result in
the rejection of the suit only on the ground of non-inclusion of all the

properties. Keeping this aspect in view, notwithstanding that the
proviso to Order VI Rule 17 of the CPC imposes certain restrictions, this

case has to be looked at differently.

 It is, therefore, to be considered as to whether the suit of the
petitioner should be permitted to proceed under such legal defects or
whether the said defects could be done away with before it is too late.
As has been held by the Apex Court in the above referred judgments,
appropriate costs could be imposed on the petitioner, to be awarded to
the respondent so as to reduce the rigors of litigation and the hardships
that are caused to the respondent.

In the light of the same, I find that the ends of justice would be
met by permitting the petitioner to amend the plaint so as to include all
the properties which have been left out and which are situated in UttarPradesh. The second respondent is at liberty to file an Additional
Written Statement, if felt necessary.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7029 OF 2015
RAJBAHADDUR JIYARAM YADAV
VERSUS
PRAKASH @ PAPPU JIYARAM YADAV AND OTHERS

CORAM : RAVINDRA V. GHUGE, J.
Dated: July 29, 2015
Citation; 2016(1) ALLMR 550,2016(2)MHLJ639

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When doctrine of Res Judicata is not applicable to suit for partition?

‘Res judicata’ literally means a “thing adjudicated” or “an
issue that has been definitively settled by judicial decision”.1
1 Black’s Law Dictionary, 8th Edition, p.1337

The principle operates as a bar to try the same issue once over.
It aims to prevent multiplicity of proceedings and accords
finality to an issue, which directly and substantially had arisen
in the former suit between the same parties or their privies and
was decided and has become final, so that the parties are not
vexed twice over; vexatious litigation is put an end to and
valuable time of the court is saved. (See Sulochanna Amma
v. Narayanan Nair (1994) 2 SCC 14

15. In Jaswant Singh v. Custodian of Evacuee Property (1985) 3 SCC 648
,
this Court has laid down a test for determining whether a
subsequent suit is barred by res judicata:
“…In order that a defence of res judicata may
succeed it is necessary to show that not only
the cause of action was the same but also that
the plaintiff had an opportunity of getting the
relief which he is now seeking in the former
proceedings. The test is whether the claim in
the subsequent suit or proceedings is in fact
founded upon the same cause of action which
was the foundation of the former suit or
proceedings….”
16. The expression ‘cause of action’ came to be interpreted
by this Court in Kunjan Nair Sivaraman Nair v.
Narayanan Nair(2004) 3 SCC 277
, at paragraph-16. To quote:
“16. The expression “cause of action” has
acquired a judicially settled meaning. In the
restricted sense cause of action means the
circumstances forming the infraction of the right
or the immediate occasion for the action. In the
wider sense, it means the necessary conditions
for the maintenance of the suit, including not
only the infraction of the right, but the infraction
coupled with the right itself. Compendiously the
expression means every fact which would be
necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of
the court. Every fact which is necessary to be
proved, as distinguished from every piece of
evidence which is necessary to prove each fact,
comprises in “cause of action”.”
17. In Halsbury’s Laws of England(4th Edition), the
expression has been defined as follows:
“‘Cause of action’ has been defined as meaning
simply a factual situation the existence of which
entitles one person to obtain from the court a
remedy against another person. The phrase has
been held from earliest time to include every
fact which is material to be proved to entitle the
plaintiff to succeed, and every fact which a
defendant would have a right to traverse.
‘Cause of action’ has also been taken to mean
that particular act on the part of the defendant
which gives the plaintiff his cause of complaint,
or the subject-matter of grievance founding the
action, not merely the technical cause of
action.”
 The suit filed by the plaintiff in 1962, based on the
settlement deed executed by her husband in her favour and
the sufferance of the dismissal of the suit, will not, in any way,
be a bar for making a claim for her share, if any, of the family
property, if otherwise permissible under law. As succinctly
addressed by the first appellate court, the 1962 suit for the
entire property was based on a settlement deed and it was a
suit for possession. Whereas, the 1988 suit for partition was for
plaintiff’s one-half share in the property based on her birth
right. Cause of action is entirely different.
Thus, the High Court in our opinion is not right on the

point of res judicata.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1858-1859 OF 2016

NAGABHUSHANAMMAL  V C. CHANDIKESWARALINGAM 

Citation;(2016) 4 SCC434
Dated;February 26, 2016.

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When property purchased by coparcener shall be treated as joint family property?

The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property In the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. (Vide Amritlal Sen & ors., v. Surath Lal Sen & others(1) Appalaswami v. Suryanarayanamurthy & others(2).
The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands. The yield from these lands may roughly be estimated at about 300 kalams for each year. The price per kalam in 1941 appears from Ex. 100 to have been Rs. 2/6/-. The net income, after payment of the kist and debiting the expenses of cultivation etc., may be placed there-fore at about Rs. 500 It is undoubtedly a very rough estimate. But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendant's hands from the D Schedule property. On this calculation the first defendant appears to have had in his hands about Rs. 1,5001 during the years 1940 to 1942. There was already however a deficit of more than this amount on his management of the properties during the previous period 1931 to 1939. It is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942. The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.

Supreme Court of India

K. V. Narayanaswami Iyer vs K. V. Ramakrishna Iyer And Ors on 26 March, 1964

Equivalent citations: 1965 AIR 289, 1964 SCR (7) 490

Bench: Gupta, K.C. Das

BENCH:
GUPTA, K.C. DAS
SUBBARAO, K.
DAYAL, RAGHUBAR

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Whether suit for partition is maintainable even though there is non joinder of necessary parties?

This court also fails to understand as to how the alleged family settlement between the NLD Group and BLD Group would be binding to the defendant companies and firms, apart from the issue as to whether the alleged document dated 20.12.2007 could be called a family settlement. Under the circumstances this court finds much substance in the submission made by the learned counsel for the appellants that the suit filed by the plaintiffs is not only bad for mis-joinder of parties and of causes of action, but also for non-joinder of necessary parties and that the suit in the present form would not be maintainable in the eye of law.

Babu Lal & Ors. Vs. M/s. Vijay Solvex Ltd. & Ors.

[Civil Appeal No. 7174 Of 2014 arising out of SLP(C) No.9914 of 2012]

Dated;August 4, 2014.

 Citation: 2014(5)ALLMR(SC)899,

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Landmark Judgment on right to widow to demand partition in property of her Husband

 In the light of above basic doctrine of jurisprudence, I
hold that the right having been given to a widow or mother or
women under the Act of 1956, she cannot be told that though she
has a right to get share, but she cannot file a suit for recovery of
share of her deceased husband as she has no right to file a suit.
When a right is given, the remedy has to be there namely; remedy
to file a suit for partition, which cannot depend upon the desire or
demand of other coparceners in the family to have a partition of
the   joint   family   property.   I   don't   think   that   personal   law   of
Hindus, in this context, can be said to be affected in any manner.
Any   contrary   interpretation   would   be   in   violence   to   the   dicta
discussed above by me on the subject, and would be a retrograde
step. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Second Appeal No.119/2013
 Mr. Santosh Popat Chavan V Mrs. Sulochana Rajiv @ Raju Chavan,


­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­ A. B. CHAUDHARI, J.

Dated : 12.12.2014
Citation;2015(5) ALLMR 604

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When court can not grant interim injunction in suit for partition?

Application for ad interim injunction filed in suit for partition-all co-sharers not joined as parties in suit -In absence of co-sharers no interim order can be passed-Vacation of ad interim order of injunction proper.

Kolkata High Court (Appellete Side)

Sk. Riyasat Ali vs Sk. Safiuddin Ahamed & Ors on 25 June, 2015

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Whether suit for partition is maintainable when all co-sharers are not party to suit?

We have already mentioned above that the plaintiff filed a suit for partition by joining the defendant nos. 1 and 2 therein as co-sharers in the suit property.

It is settled principle of law that the suit for partition cannot be maintained unless all the co-sharers are joined as parties in the suit.

Here is the case where we find that the defendant no.1 disclosed in his application for vacating the interim order that he had transferred part of his interest in the suit property to four purchasers as named above before filing of the suit.

Having regard to the fact that when one of the admitted co-sharers transferred a portion of his share in the suit property, the purchaser automatically became co-sharer by virtue of purchase. As such, in the absence of those co-sharers, the suit for partition cannot be held to be maintainable.

Kolkata High Court (Appellete Side)

Sk. Riyasat Ali vs Sk. Safiuddin Ahamed & Ors on 25 June, 2015

Author: Jyotirmay Bhattacharya
Citation;AIR 2015(NOC)1094 cal

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Whether dispute of paternity can be raised again and again?

In case the occasion to raise the plea has arisen for the first time in the
present suit, and the petitioner has raised it, it would have certainly needed
adequate attention of the Court.  That, however, is not the case.  Way back in
the year 1995, the respondents and their mother filed M.C.No.23 of 1995 in the
Court of Additional Junior Civil Judge, Addanki, under Section 125 of Cr.P.C.
The petitioner raised the same plea, as in the present suit, about his
relationship with the respondents.  The trial Court rejected that plea and
allowed M.C.No.23 of 1995, through order dated 27-03-1996.
The petitioner could have felt grievance about two aspects, viz., the quantum of
maintenance, or the very obligation to pay it.  Irrespective of the quantum of
maintenance ordered by the trial Court, if the petitioner was able to establish
that he is not under obligation to pay that at all, on the ground that the
respondents are not his children, he was supposed to challenge the findings
recorded in the M.C.

Section 125 of Cr.P.C. is very clear and succinct in its purport.  The
maintenance can be ordered by a Court against a person only in favour of his
wife, legitimate or illegitimate minor children, and parents.  While the
relationship with the wife comes into existence on account of marriage,  the
relationship with the children and parents is one, referable to sanguinity, or
through blood. The said provision does not recognize any other kind of
relationship for placing the person under obligation to pay maintenance.

A specific issue was framed in the M.C., and it was answered against the
petitioner.  The plea that the proceedings under Section 125 of Cr.P.C are
summary in nature; cannot be accepted. 
The reason is that the trial Court must record specific findings,
not only about the existence of relationship, but also the aspect of negligence.
Apart from that, the necessity of the persons, claiming maintenance, on the one
hand, and the financial status of the person, against whom it is claimed, on the
other hand; are required to be determined succinctly.  That, in turn, needs
recording of evidence.  When such is the state of affairs, the proceedings
cannot be said to be summary in nature.

The very fact that the petitioner was made to pay maintenance to the respondents
1 and 2 discloses that he was treated as their father, and by permitting the
order to become final, the petitioner had admitted that relationship.  He cannot
be permitted to re-open the same, when the suit for partition was filed.  The
trial Court has taken correct view of the matter.

Whatever may be the permissibility for a party to raise same questions in
different proceedings, the one, relating to parentage cannot be permitted to be
pleaded, repeatedly.  
ANDHRA PRADESH HIGH COURT

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY          

C.R.P.No.3334 of  2013 

14-11-2013 

Potu China Musalaiah..petitioner
Vs
Potu Yallamanda and another..Respondents   



THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY          
Citation: 2014(1)ALD558,2014(2)crimes 538 AP

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Basic principles for taking legal heirs on record after setting aside abatement

From the above discussion, the following principles can be deduced:--

1) Where any of the parties to a suit appeal dies during the pendency of the suit appeal, steps to bring his legal representatives on record have to be taken in terms of the provisions of Order 22 of the Code of Civil Procedure.

2) Where no steps are taken to bring the legal representatives on record under Rule 3 or 4 of Order 2 and the suit/ appeal has abated and/ or where the attempt to have the order of abatement set aside and bring the legal representatives of the deceased party on record failed, the defaulting party has to take the consequences mentioned in Rule 9 of Order 22 and he cannot be allowed to have recourse to the general provisions of Order 1, Rule 10, C.P.C. for impleading the legal representatives of the deceased party by circumventing the provisions of the said Order 22.

3) An application under Order 1, Rule 10, C.P.C. to implead a necessary party (including a legal representative of a deceased party to the suit/ appeal which has abated due to not bringing on record the legal representatives of the deceased party) can be filed in a suit appeal to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, provided the proposed party has an independent right or obligation dehors his position as legal representative of the deceased defendant.

4) An administration/partition suit does not abate as a whole due to not bringing on record the legal representative of a deceased party (co-sharer/ co-owner) as each party is in the position of the plaintiff and the heirs of the deceased co-sharer -- co-owner is a necessary party to the suit, he can come on record on his application under Order 1, Rule 10, C.P.C.

Andhra High Court

Morasa Anjaiah vs Kondragunte Venkateswarlu ... on 3 February, 1992
Equivalent citations: AIR 1993 AP 156, 1993 (1) ALT 57
Bench: S S Quadri, M R Reddy

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