Law: Partition Act (IV of 1893)

Section: 4

Law: Civil Procedure Code (V of 1908)

Section:

  a. Partition Act (IV of 1893)--- ----S. 4---Civil Procedure Code (V of 1908), O.VI, R. 16---Suit for partition-- Written statement and replication----Rejection of replication---Suit for partition of property left by deceased father of the, parties---Defendant setting up paramount title in the suit property in her written statement on the basis of gift ---Such title challenged by plaintiffs in this replication---Validity-- Amendment in plaint in a partition suit and not mere rebuttal of claim in replication, is a legal requirement when exclusive title is claimed by defendant otherwise then c. would be no opportunity for defendant to controvert the new plea---Suit ha, to be converted into declaration of title or cancellation of the alienation and for partition---Such replication was rightly rejected. When in a partition suit paramount title is set up, it is desirable to require the plaintiff to amend the plaint so as to challenge the existence, validity or legality of the alienation on the basis of which exclusive title is pleaded and to convert the suit into a suit for declaration. of title or cancellation of the alienation and for partition. Where there is a conflicting claim to a share in the property under the same right under which the parties sought, the determination of the conflict is incidental to the partition and cannot be avoided before partition is directed. But where claim of title paramount is put forward by an adversary in a partition suit then the said question cannot be gone into unless the plaint is amended and the suit is converted into a suit for declaration and title or cancellation of the deed relied upon for claiming title paramount and thereafter for partition of the share so claimed. Replication is a supplement of plaint and is also supposed to clarify such ambiguities which are left in the plaint or are pointed out by the defendant in his written statement and that altogether new case cannot be allowed to be presented in a replication as there will be no opportunity for the defendant to convert such a new case set up in the replication. Zamani Begum v. Fazal-ur-Rehman AIR 1943 Lah. 241; Muhammad Sarwar v. Abdul Lateef PLD 1978…