The question that arose for consideration is as to whether daughter being a co-parcener is a necessary party in a suit for partition of ancestral co-parcenary property.
The reasons assigned by the court below in rejecting the petition is that the cause of action for filing the suit arose in the year 1999 when the defendants refused the claim of the plaintiff for partition of the suit property. According to the court when cause of action arose, daughters of Sri Lal Sharma (defendant No. 5) had no right over his property during life time of his father and so the provisions of Hindu Succession (Amendment) Act 2005 will not apply in the present suit because the present suit was filed much prior to the said Amendment Act.
Para 9. In the instant case as noticed above, ancestral properties of the parties which is the suit property has still not been partitioned. Admittedly the plaintiff demanded partition and then filed the suit which is pending. The court below committed gross error of law in rejecting the petition of the petitioner on the ground that cause of action arose in 1999 i.e. before commencement of Amendment Act, 2005. The court below miserably failed to take into consideration the fact that the property has not yet been partitioned and the suit for that purpose is still pending.
HELD: 10. It is well settled that claim for partition is a recurring cause of action and unless division of property is brought to completion by actual delivery of allotment of share, each party has right to claim partition. The impugned order, therefore, cannot be sustained in law.
For more details kindly refer: Surendra Nath Sharma Vs. Rajendra Kumar Sharma and ors. – Court Judgment