A suit for partition is not maintainable in the absence of a co-sharer.

Re: CAN 1559 of 2012 (Condonation of delay)

1. The instant appeal being FAT 35 of 2012 is directed against a preliminary decree passed in the partition suit by the learned Trial Court. Since the instant appeal was not filed within the period of limitation, an application has been taken out by the appellant for condonation of delay. There was 234 days delay in filing this appeal before this Court. Reasons for the delay have been sufficiently explained by the appellant in this application. Such delay was caused due to the illness of the appellant. Medical certificate has also been annexed to the application for condonation of delay to substantiate the appellant’s claim of his illness during the relevant period.

2. No affidavit has been used by the respondents controverting such statements made by the appellant in his application for condonation of delay.

3. In view of such uncontroverted statements made by the appellant in the application for condonation of delay, we hold that the reasons which prevented the appellant from filing this appeal within the prescribed period of limitation have been sufficiently explained by the appellant in this application. Accordingly, delay in filing this appeal is condoned. Let the appeal now be registered.

4. The application for condonation of delay being CAN 1559 of 2012 is, thus, disposed of.

Re: FAT 35 of 2012

Immediately after the delay in filing this appeal is condoned, we are requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit. According to the learned counsel appearing for the parties, the merit of the instant appeal can be decided only on point of law without deciding any factual dispute between the parties. Since the lower court records have already been brought, we, on the prayer of the learned counsel appearing for the parties, have decided to hear out the appeal itself on merit on the basis of the papers available before us by dispensing with the requirement of filing paper books in this appeal.

5. Let us now consider the merit of the instant appeal in the facts of the present case.

6. Admittedly the “Ka” schedule property comprising of 1.72 acres of land lying in R.S. Plot No. 1196 of 185 No. Gangsara Mouza within P.S. Dhantala was purchased by Ramrup Chouhan in the name of his two sons viz., Krishna Chouhan and Maniklal Chouhan by two registered sale deeds, in the year 1981. Thus, those two brothers became the owners of “Ka” schedule property in equal share. Since one of the brothers viz., Maniklal Chouhan was facing difficulties in possessing the suit property jointly with his brother Krishna, he filed the suit for declaration of his 50% share in the suit property and for partition.

7. In the said suit, he also challenged the legality and validity of the deed of gift allegedly executed by Maniklal Chouhan for bequeathing his 50% share in favour of his brother viz. Krishna Chouhan. He thus, prayed for a declaration regarding nullity of the said deed of gift which was mentioned in schedule ‘Kha’ of the plaint.

8. The defendant viz. Krishna Chouhan appeared in the said suit and contested the same by filing written statement claiming 16 annas share in the suit property. He claimed that he became the owner of the suit property by way of purchase of the suit land. He further claimed that by virtue of the deed of gift executed by his brother Maniklal Chouhan bequeathing his 8 annas share in favour of Krishna Chouhan, the defendant viz. Krishna Chouhan became the owner of remaining 50 % share in the suit property. Thus, he claimed absolute title in the suit property and he prayed for dismissal of the suit.

9. The parties led evidence in support of their respective claims. Since the signature of Maniklal Chouhan appearing in the deed of gift mentioned in schedule ‘Kha’ of the plaint was denied by the plaintiff viz. Maniklal Chouhan, the disputed signature of the donor appearing in the said deed of gift was sent to the Hand Wr