Free adv pl. Can a new 'Declaration' be filed when AP High crt 582/2008(Stay on SA). Orig. partition suit 1977
3 years ago
Background.
Here is our situation in brief. My grand fathers had filed a partition suit in 1977. They are 7 brothers(parties) in total. One of the brother has surrender his share after gaining The first judgement came in 1987. It was appealed in a next level court. Appeal suit was dismissed in 2003. After the judgement, 3 advocate commissioners were appointed and they have duly delivered their reports in 2006, 2007 and 2008. The advocate commissioners were able to deliver the paper partitions but have not done the physical partition of the properties.
The judgement was appealed in High Court of AP in 2008. Since the advocate commissioner was trying to deliver the judgement in 2008, a stay order was also obtained by one of the party.
The stay order states that "Except passing of the final decree, all further proceedings may go on".
Current situations:
ALL 7 main parties have since died. Their children are not sure what to do with the appeal. Son of 7, Grand son of 2nd , Grand son of 5th joined together and create a document stating they are giving their powers to the son of 7th party and created a registration document. Then son of 7th party has again done registrations to some of remaining legal hairs (2,3,5 and 7). As per receiver's report the property was split into 6 equal shares. But these guys split into 8.
Question:
• The registrations done above are they legal? while there is an active stay order.
• What is the meaning of the order of the stay? Can another "Declaration suit" be filed by me asking a lower court to divide my share of 1/6 (9 cents land) ?? Is this valid? OR since there is already an active suit in the High court any of the parties may state "put my new suit" in waiting for high court's resolution on the second appeal. SA is pending since 2008.
• What steps I should do to break the ice??
Please help me make a educated decision... At this stage looking for free advice only.
Thanks in advance.
Ayantika Mondal @ Prime Legal
Responded 3 years ago
Section 34 of the Specific Relief Act lays down the circumstances under which a declaratory decree may be passed. Section 34 of the Specific Relief Act does not sanction every kind of declaration but only a declaration that the plaintiff is entitled to any legal character or to any property. It is not a matter of absolute right to obtain a declaratory decree and it is discretionary with the court to grant or refuse to grant it.” It is essential for a decree under Section 34, Specific Relief Act, that the plaintiff must be entitled to any legal character to any right to property. ‘Legal character’ is a position recognized by law, and a person’s legal character is made up of the attributes which law attaches to him in his individual and personal capacity and the phrase is synonymous with the word ‘status’. It includes the right of franchise and the right of election. If you find this helpful, please rate us.
A declaration suit can be filed by anyone who claims status or right even if such right exists in favor of any of the parties or against the defendant which affects the position of the plaintiff. Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested in denying, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any relief. Provided that no Court shall make any declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. If you find this helpful, please rate us.
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