Case Note & Summary
The case arises from a partition suit filed by two sisters against the appellant, challenging his status as adopted son and seeking partition. The trial court held the suit properties were ancestral and granted a preliminary decree on 15.12.2004, awarding the appellant two-thirds share and each sister one-sixth share. After the Hindu Succession (Amendment) Act, 2005, the sisters applied for enhancement of shares, which was allowed, giving each sister one-third share and increasing mesne profits. The appellant filed a review petition (Review Application No. 1 of 2012) which was dismissed on 6.11.2014 as not maintainable. Within two months, on 9.1.2015, he filed a first appeal along with an application for condonation of delay of 4 years and 30 days, citing pendency of review, old age, illiteracy, and lack of proper legal advice. The District Judge-1, Islampur rejected the delay condonation application on 22.2.2018, holding that the delay was not satisfactorily explained and the appeal itself was not maintainable. The appellant then filed the present second appeal. The High Court, after hearing both sides, found no perversity or illegality in the impugned order and dismissed the second appeal, upholding the rejection of the delay condonation application.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Sufficient Cause - The appellant sought condonation of delay of 4 years and 30 days in filing first appeal against modification of preliminary decree, citing pendency of review petition, old age, illiteracy, and lack of proper information from advocate. The District Judge rejected the application holding that the delay was not satisfactorily explained and the appeal was not maintainable. The High Court upheld the rejection, finding no perversity or illegality in the impugned order. (Paras 1-6) B) Hindu Succession Act - Amendment 2005 - Section 6 - Enhancement of Share - After preliminary decree dated 15.12.2004, the plaintiffs (two sisters) applied for enhancement of shares based on the 2005 amendment to the Hindu Succession Act. The trial court allowed the application, enhancing their shares from one-sixth each to one-third each. The defendant challenged this modification. (Paras 2-3)
Issue of Consideration
Whether the delay of 4 years and 30 days in filing the first appeal against the modification of the preliminary decree was satisfactorily explained and whether the appeal itself was maintainable.
Final Decision
The second appeal is dismissed. The impugned order dated 22.2.2018 passed by the learned District Judge-1, Islampur rejecting the delay condonation application is upheld.
Law Points
- Condonation of delay
- Sufficient cause
- Limitation Act
- 1963 Section 5
- Hindu Succession Act
- 1956 Section 6
- Partition decree
- Review petition not maintainable
