Is suit for Partition maintainable in presence of a Will? #indianlaws

Delhi High Court in this case had to decide questions relating to whether legal heirs can maintain a suit for partition when the parent has left a will, and second one related to payment of ad valorem court fee when the plaintiff was not in possession of suit property? The court held that there exists in law a doctrine of election. It means that if two or more rights are available to a party on the same subject, it would be open to a party to elect which one right it would like to avail of. Upon the death of a person if there is a bequest by way of a Will, the legal heirs can elect whether to proceed to inherit the estate of the deceased as per the Will or inherit the estate as legal heirs and successor-in-interest of the deceased.  On the second question the court held that there when there is no averment in the plaint to suggest ouster or exclusion then the plaintiff is in constructive possession of the properties and therefore she is not required to pay ad valorem court fee.

Uma Ghate vs. Umesh Phalpher

 ( 01 . 12 . 2016 – DELHC )