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Documents citing Aher Hamir Duda vs Aher Duda Arjan And Ors. on 7 February, 1977

Yakubbhai vs Ajitbhai

7) Referring to the averments made in the plaint and more particularly paragraph 10 thereof, which is the cause of action clause, it was submitted that this cannot be the cause of action for the purpose of seeking the reliefs claimed in the suit. It was submitted that the sale deed executed by the revisionist and the respondents No.3 to 8 required consent by law. That law does not require any consent of persons like the plaintiffs, who were minors at the relevant time and, as such, there is no cause of action for instituting the suit. Referring to the provisions of section 12 of the Hindu Minority & Guardianship Act, 1956, it was submitted that the previous permission of the court under section 8 of the said Act for disposing of the undivided interest of the minor in the joint family property is not required. It was contended that a suit for partition at the instance of the plaintiffs is not maintainable in view of the law laid down by this court in the case of Aher Hamir Duda Vs. Aher Duda Arjan (supra). It was urged that if the court finds that ultimately at the end of the trial the suit would fail, the plaint should be rejected. It was urged that the cause of action in the present case is illusory and that the plaint does not disclose cause of action for seeking relief. It was submitted that the cause of action, therefore, is illusory and, hence, in the absence of any cause of action for instituting the suit, the plaint is required to be rejected under rule 11(a) of Order VII of the Code.
Gujarat High Court Cites 16 - Cited by 0 - H Devani - Full Document

Mahesh S/O Murigeppa Avatagi At Avutagi vs Ishwar S/O Basappa At Basavaraj Avatagi ... on 4 March, 2024

14. It is further contended by the learned counsel for the petitioner that in the law that is applicable to the region where the parties are residing, a party is not entitled to a partition without the assent of his father and 14 hence, the plaintiff can make a claim for partition only through the father, and that the suit of the plaintiff is not maintainable. In support of the said contention, he relied on the extract from Mulla's Hindu Law - 24th Edition. He also relies on the Division Bench judgment of Gujarath High Court in the case of Aher Amir Duda v. Aher Amir Arjan5 as well as the judgment of a coordinate Bench of the Madhya Pradesh High Court in the case of Shiv Ratan v. Kanhaiyalal6 .
Karnataka High Court Cites 11 - Cited by 0 - Full Document

Bhavini D/O Jitendrabhai ... vs Jayveer Enterprises Pvt. Ltd on 3 July, 2025

9. Furthermore, the suit is filed for seeking partition of Hindu undivided family property at the instance of daughter of defendant no. 15 and grand-daughter of defendant No.11 respectively. It appears from the pleading of the parties that defendant no.15 happens to be father of plaintiff no.1, has not sought for any partition and also having any objection as regards the execution of sale-deed by his mother i.e. defendant no.11. When predecessor of plaintiff no.1 i.e. her father and grandmother and so also mother of her Page 9 of 12 Uploaded by SALIM(HC01108) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 22:20:26 IST 2025 NEUTRAL CITATION C/AO/143/2024 JUDGMENT DATED: 03/07/2025 undefined grandmother are alive, no right accrued in favour of plaintiff no.1 to claim such partition. The plaintiff no.2 happens to be wife of defendant no.15 and daughter-in-law of defendant no.11 would not have such right in property. The issue is no longer remain res-integra as its covered by the decision of the Division Bench of this Court in the case of AHER HAMIR DUDA Vs. AHER DUDA ARJAN reported in 1977 GLR 1032, wherein held thus:-
Gujarat High Court Cites 10 - Cited by 0 - Full Document

Harji Shivji Hirani vs Vishram Harji Hirani on 8 April, 2019

6. To substantiate this contention, learned advocate, Mr. Shah has submitted on the basis of documents of the original plaintiffs that the effect of partition with respect to land bearing Survey No.195 is very much reflected in the village Form No.6 and grandfather Shivji Lalji had divested the property among two brothers Harji Shivji and Lakman Shivji, hence, according to learned advocate, on the basis of documents produced by the plaintiffs, the cause of action does not arise for claiming relief. It has been submitted that according to the Hindu law, it is settled proposition of law Page 4 of 17 C/CRA/405/2018 ORDER right from 1977 in a decision reported in 1977(0) AIJEL-HC 200203 in the case of Aher Hamir Duda Vs. Aher Duda Arjan that right to seek partition cannot be enforced without the consent of the father and cannot ask severance of status without father giving consent. When this be the position of law on the concept of partition, there is hardly any case made out by the original plaintiffs to seek any relief. Additionally, a further judgment is also relied upon which is delivered by the Madhya Pradesh High Court dated 1.11.2017 in Civil Revision Application No.42 of 2017 in which also, it has been propounded that grandson in the Mitaksara Coparcenary property was having birth right but after commencement of Hindu Succession Act, by virtue of section 8 of the Act, property devolves in the grandson by succession which has been stated in it and as such, since birth right concept is already extinguished by virtue of enactment of Succession Act, the grandson cannot claim partition during the life time of his father. Relying upon these decisions, a contention is raised that the property was never an ancestral property, it was a self-acquired property of grandfather which was divested by way of partition in the hands of father and as such, the plaintiffs have no right to seek any relief, hence, the cause of action having been completely missing, there is no Page 5 of 17 C/CRA/405/2018 ORDER question of allowing the suit. No other submissions have been made.
Gujarat High Court Cites 7 - Cited by 0 - A J Shastri - Full Document

Whether Reporters Of Local Papers May Be ... vs Heirs Of Trivedi Karunashankeratmaram on 16 July, 2012

In the alternative, it was pleaded that, as per the decision of the Division Bench, a son is not entitled to ask for partition in the life time of his father without his consent, when the father is not separated from his father or brothers and nephews and as the facts do not indicate that father of the original plaintiff was joint with his father or his brothers or his nephews, the principle laid down by the Division Bench would not be applicable to the facts of the present case and therefore, the appeal should be dismissed.
Gujarat High Court Cites 2 - Cited by 0 - Full Document

Mohanbhai Muljibhai vs Hiteshbhai Chandulal Gajera on 16 January, 2013

Learned Counsel Shri Mehul Shah for the Appellants has referred to the impugned judgment and order and has tried to submit that taking the case of the Plaintiffs as it is from the plaint itself, the claim is made on the basis of the fact that Respondent Nos. 1 to 4, who are the sons / daughters of the Appellant No.1 that it is a HUF property. However, learned Counsel Shri Mehul S. Shah has submitted that whether the daughter can claim partition during the life time of the father without the consent of the father. Learned Counsel Shri Mehul Shah submitted that by the amendment in the Hindu Succession Act, 2005, what is sought to be made is equal right for the female (daughter), but the position would not be changed with regard to the right to claim partition. Learned Counsel Shri Mehul Shah has also referred to and relied upon the judgment of the High Court of Gujarat reported in 1977 GLR 1032 Aher Hamir Duta v. Aher Duda Arjan and he referred to the dates to support his submission that such a claim is made as delayed claim, and therefore, the discretion could not have been exercised by the court below.
Gujarat High Court Cites 8 - Cited by 0 - R H Shukla - Full Document

Cs : 397/09 vs Sh. Jai Narian Mathur on 5 May, 2010

As per defendant no. 1, the plaintiff who, even if, is his son cannot claim partition during his lifetime. I do not find much substance in this plea. It is well settled that every Hindu adult coparcener is entitled to demand partition whenever he likes. It was held by Gujarat High Court in case titled as "Aber Hamir Vs. Aber Duda AIR 1978 Gujarat 10" that under Mayukha Sub School of Mitakshara, assent of the father is not necessary to a suit against the grandfather and his co-laterals have partitioned by meets and bounds where there had already been severance of status. Mullah in his 4 book "Principles of Hindu Law, 20th Edition, Volume 10" has described that it is now settled law in Delhi that a son can ask for partition from the father.
Delhi District Court Cites 2 - Cited by 0 - Full Document

Cs : 137/09 vs Sh. Sita Ram Shah on 12 May, 2010

It is well settled that every Hindu adult coparcener is entitled to demand partition whenever he likes. It was held by Gujarat High Court in case titled as "Aber Hamir Vs. Aber Duda AIR 1978 Gujarat 10" that under Mayukha Sub School of Mitakshara, assent of the father is not necessary to a suit against the grandfather and his co-laterals have partitioned by meets and bounds where there had already been severance of status. Mullah in his book "Principles of Hindu Law, 20th Edition, Volume 10" has described that it is now settled law in Delhi that a son can ask for partition from the father.
Delhi District Court Cites 1 - Cited by 0 - Full Document
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