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Appeal against dismissal of interlocutory application

Shivendra Pratap Singh

Advocate

20/07/2022

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Question: Appeal against dismissal of interlocutory application. My Grandparents had 7 children and among them 4 sons and 3 daughters. Joint family property is around 130 acres which was divided among all family members under Registered Family Settlement (RFS) in 1972 and my grandfather died in 1975 and grandmother died in 2010. Among 7 children, my mother is 6th one & who is a Minor during the time of such Registered Family Settlement. Out of a total 130 acres, only 6 acres of land was given to 3 daughters (2 acres for each daughter and the rest of them for 4 sons).

Apart from above stated properties, there were certain properties which were not covered under Registered Family Settlement and such properties were shared among only 4 sons (intestate properties) in 1985 as an unregistered partition deed without any consent/signature of any daughters. Further, there were certain properties which were purchased by one of the elder sons by utilising joint family funds without giving any share in such joint family funds to daughters. 

At present, among 4 sons and their children, in 3 different courts, cases were filed for proper partition of such intestate properties which were divided among 4 sons through registered partition deed in 1985 without any consent of daughters.  My mother filed IA to get implead in 2021 in July of last year and IS filed was dismissed stating that my mother received 2 acres share in a registered deed of 1972 and as such no more share in that but the order was silent with regard to intestate properties.

We filed a new case in respect of all intestate properties and now the case is pending before lower court. Further after filing a new case in jan 2022, further we filed an impleading application in the rest of the 2 cases of our joint family and in one case already IA is allowed and one more case its in objection stage and hope it will get allowed there also. But now the IA dismissed case got more of our properties and as such lower court lawyers also suggesting to file appeal to get impaled along with filing condonation for delay. 

Kindly suggest can we go for a delay of more than 9 months and can file an appeal before HC now for getting impleading in IA dismissed case and if so later on we can club all three cases through district court and can run the case in one court. 

Asked from: Karnataka

The ground upon which the court dismissed your interlocutory application is unsustainable. The pending case, in which you filed an IA, is related to the partition of property which is extraneous to the Registered Family Settlement Deed. 

If the civil suit is filed (in which you had filed IA) towards the partition of property which was already divided in 1985 among the four brothers excluding the three sisters, then all the three sisters and their legal heirs are necessary party. 

According to Order 1 Rule 10 of the code of civil procedure, the court can add any person as party at any stage of the proceedings, if the person whose presence before the court is necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions involved in the suit.

In Kasturi vs. Uyyamperumal and others [(2005) 6 SCC 733] the Supreme Court has held that: it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are:

  1. There must be a right to some relief against such party in respect of the controversies involved in the proceedings 
  2. No effective decree can be passed in the absence of such a party.

In your case the dispute is relating to partition of property of deceased “A”. Hence all legal heirs of “A” are necessary parties. In absence of legal heirs as a party the court cannot pass an effective decree. 

The court dismissed your IA because you got a share in the property “X” whereas the dispute is regarding to property “Y”. The said property “X” is extraneous to the said civil suit. Hence, the order becomes an erroneous order. 

Your right is still alive hence, you can file an appeal against the dismissal of IA. The said order affects the rights of the party therefore it is appealable. You can file an appeal with the condonation of delay. 

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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