Factors to be examined in determining suit for partition/possession

The Court is required to go through the merits of the claim of the respective parties in proper perspective and then to record a finding regarding extent of shares received by each coparcener/co-owner keeping in view the nature of properties such as whether it was self acquired property or ancestral property

What are the powers of Court while acting under Section 96 of the Code of Civil Procedure, 1908 (CPC) or in other words powers of first Appellate Court deciding an appeal on issue relating to partition of shares in property was the question before the Supreme Court.

It was held that in a suit filed by a co-sharerer, coparcener, co-owner or joint owner or 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:
•    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. 
•    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.
•    Whether the properties in suit are capable of being partitioned effectively and if so, in what manner?
•    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?

The above are material issues for proper disposal of the partition suit and same 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. 

The Court is required to go through the merits of the claim of the respective parties in proper perspective and then to record a finding regarding extent of shares received by each coparcener/co-owner keeping in view the nature of properties such as whether it was self acquired property or ancestral property and, if so, in whose hands, its source of acquisition by such person, the manner of devolution on the legal representatives of such person etc., after due appreciation of evidence keeping as per the provisions of Hindu Succession Act and other related laws applicable to the issues arising in the case.

[Shasidhar & Ors. vs. Ashwini Uma Mathad & Anr.]
(SC, 13.01.2015)