HOW TO DECIDE A PARTITION SUIT & HOW TO DISPOSE THE FIST APPEAL = BASIC PRINCIPLES IN PARTITION SUIT in a suit filed by a co-sharerer, coparcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenery property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co-sharerers, coparceners, co- owners or joint-owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case. (see "Hindu Law" by Mulla 17th Edition, Chapter XVI Partition and Reunion - Mitakshara Law pages 493-547). How the regular first appeal is to be disposed of by the appellate court/High Court Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. High court simply allowed the first appeal on the assumption that the parties have come to a settlement - with out any application and with out any compromise - committed grave error. The appeal thus succeeds and is, accordingly, allowed. The impugned judgment is set aside and the case is remanded to the High Court for deciding the first appeal and cross-objections afresh, keeping in view the principle of law laid down by this Court as mentioned above. -2015 SC msklawreports

HOW TO DECIDE A PARTITION SUIT & HOW TO DISPOSE THE FIST APPEAL

BASIC PRINCIPLES IN PARTITION SUIT 

in a suit filed by a co-sharerer, coparcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, 

it is necessary for the Court to examine, 

in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenery property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. 

Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. 

Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner? 

Lastly, whether all properties are included in the suit and all co-sharerers, coparceners, co- owners or joint-owners, as the case may be, are made parties to the suit? 

These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case. (see "Hindu Law" by Mulla 17th Edition, Chapter XVI Partition and Reunion - Mitakshara Law pages 493-547). 

How the regular first appeal is to be disposed of by the appellate court/High Court 

Order 41 CPC deals with appeals from original decrees. 

Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: 

(a) the points for determination; 

(b) the decision thereon; 

(c) the reasons for the decision; and 

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 

High court simply allowed the first appeal on the assumption that the parties have come to a settlement - with out any application and with out any compromise - committed grave error. 

The appeal thus succeeds and is, accordingly, allowed. 

The impugned judgment is set aside and the case is remanded to the High Court for deciding the first appeal and cross-objections afresh, keeping in view the principle of law laid down by this Court as mentioned above. -2015 SC msklawreports

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