1990 (2) TMI 320 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the suit.
2. Valid cause of action or right to sue.
3. Barred by law of limitation, adverse possession, and ouster.
4. Barred under Section 34 of the Specific Relief Act.
5. Partial partition.
6. Defect of parties.
7. Sufficiency of Court-fee paid.
8. Existence of unity of title and possession between the parties.
9. Nature of properties in village Ulatu.
10. Nature of properties in Items Nos. III and IV of Schedule B.
11. Entitlement of the plaintiff to a decree for partition.

Issue-wise Detailed Analysis:

1. Maintainability of the Suit:
The court addressed the maintainability of the suit, particularly concerning the properties listed in Items Nos. (iii) and (iv) of Schedule B. It was contended that since these properties were allegedly self-acquired by defendant No. 2, the plaintiff was required to pay ad valorem court-fee on the market value of the properties. The court held that a simple suit for partition was not maintainable for these properties without the payment of the requisite court-fee.

2. Valid Cause of Action or Right to Sue:
The plaintiff claimed a 1/2 share in the properties based on a registered deed of Will and the assertion that the properties were acquired from joint family funds. The court found that the plaintiff had a valid cause of action for seeking partition of the properties mentioned in Items Nos. (i) and (ii) of Schedule B.

3. Barred by Law of Limitation, Adverse Possession, and Ouster:
The court examined whether the suit was barred by limitation, adverse possession, or ouster. It concluded that the plaintiff and defendant No. 1 continued to live jointly and constituted a joint family, which negated the claims of adverse possession and ouster.

4. Barred Under Section 34 of the Specific Relief Act:
The court considered the applicability of Section 34 of the Specific Relief Act, which pertains to declaratory suits. It found that the plaintiff's suit for partition was not barred under this provision.

5. Partial Partition:
The defendant No. 1 contended that the suit was bad for partial partition as it did not include all joint family properties. The court, however, focused on the properties specifically mentioned in the plaint and did not find the suit to be bad for partial partition.

6. Defect of Parties:
Defendant No. 2 argued that the suit was not maintainable due to a defect of parties. The court held that defendant No. 2 was a necessary party as her title to the properties was in question.

7. Sufficiency of Court-Fee Paid:
The court determined that ad valorem court-fee was payable on the market value of the properties listed in Items Nos. (iii) and (iv) of Schedule B, as the plaintiff sought to displace the title of defendant No. 2, who was not a coparcener.

8. Existence of Unity of Title and Possession Between the Parties:
The court found that there was unity of title and possession between the plaintiff and defendant No. 1 for the properties listed in Items Nos. (i) and (ii) of Schedule B, which were held to be joint family properties.

9. Nature of Properties in Village Ulatu:
The court held that the properties in village Ulatu, described in Schedule A of the written statement, were self-acquired by the plaintiff and not joint family properties.

10. Nature of Properties in Items Nos. III and IV of Schedule B:
The court found that the properties listed in Items Nos. (iii) and (iv) of Schedule B were acquired in the name of defendant No. 2 from joint family funds. However, the suit was barred under the Benami Transaction (Prohibition) Act, 1988, as the properties were held benami.

11. Entitlement of the Plaintiff to a Decree for Partition:
The court decreed that the plaintiff was entitled to a 1/2 share in the properties listed in Items Nos. (i) and (ii) of Schedule B. The suit for partition of properties in Items Nos. (iii) and (iv) was not maintainable due to the Benami Transaction (Prohibition) Act, 1988.

Conclusion:
The appeal was allowed in part. The plaintiff was entitled to partition in respect of a 1/2 share in Items Nos. (i) and (ii) of Schedule B. The suit regarding Items Nos. (iii) and (iv) was barred under the Benami Transaction (Prohibition) Act, 1988. No order as to costs was made.