2011 (7) TMI 1383 - HC - Indian Laws

Summary

Issues Involved:
1. Application for preliminary decree for partition u/s Order XII Rule 6 read with Section 151 CPC.
2. Application for dismissal of the suit u/s Order VII Rule 11 read with Section 151 CPC.
3. Validity and effect of the Will dated 18.08.1984.
4. Admission of equal rights in the suit property.
5. Limitation, estoppel, and res judicata.

Summary:

1. Application for Preliminary Decree for Partition:
The Plaintiff filed IA No. 13665/2009 u/s Order XII Rule 6 read with Section 151 CPC for passing a preliminary decree for partition of the property on admission. The Plaintiff and Defendant Nos. 1 to 3 are siblings, and the suit property was purchased by their mother, who died intestate. The Defendant No. 3 relinquished her share in favor of her brothers. The Defendant No. 1 admitted in his written statement that the Plaintiff and Defendant Nos. 1 and 2 have equal rights in the suit property. The court observed that the Will dated 18.08.1984 propounded by Defendant No. 1 was disbelieved by the Probate Court, and the property would devolve equally among the three brothers. The court passed a preliminary decree for partition declaring that the Plaintiff and Defendants 1 and 2 have equal 1/3rd share in the suit property.

2. Application for Dismissal of the Suit:
Defendant No. 1 filed IA No. 6852/2011 u/s Order VII Rule 11 read with Section 151 CPC for dismissal of the suit. The court noted that the Will dated 18.08.1984 was disbelieved by the Probate Court, and the judgment had become final. The court rejected the submission of Defendant No. 1 that his counsel made the statement before the court without instructions, as the Defendant No. 1 was present in court when the order was passed. The court dismissed the application for dismissal of the suit.

3. Validity and Effect of the Will:
The Will dated 18.08.1984 propounded by Defendant No. 1 was disbelieved by the Probate Court, and the judgment was upheld by the High Court. The court held that the judgment given by the Probate Court is a judgment in rem, binding not only upon the parties but against the whole world. Therefore, there was no need to send the parties to trial again on the issue of the Will.

4. Admission of Equal Rights:
Defendant No. 1 admitted in his written statement and during court proceedings that the Plaintiff and Defendant Nos. 1 and 2 have equal rights in the suit property. The court recorded this admission and passed a preliminary decree for partition based on this admission.

5. Limitation, Estoppel, and Res Judicata:
Defendant No. 1 raised the plea of limitation, estoppel, and res judicata in his fresh application u/s Order VII Rule 11 CPC. The court noted that this plea was not raised in the written statement or in the previous application. The court held that the suit was filed within the period of 12 years as provided by Article 110 of the Limitation Act. The court also held that the objection of estoppel and res judicata was without merit, as the previous proceedings were different from the present suit.

Conclusion:
The court dismissed the application for dismissal of the suit and allowed the application for a preliminary decree for partition. The court appointed a Local Commissioner to inspect the property and suggest ways for partition by metes and bounds. All pending applications were disposed of, and the case was listed for further proceedings.