Alternative Relief in Civil Suit -- Relief of Partition Not Pleaded -- Cannot be granted under Order VII Rule 7 CPC as lesser relief
(i) Civil Procedure Code, 1908, O.7 R.7 -- Alternative Relief in Civil Suit -- Relief of Partition Not Pleaded -- Order VII Rule 7 permits grant of a lesser relief than the one claimed only where entitlement is made out on the facts already pleaded and proved. This discretion is not available where the relief sought, such as partition, rests on a distinct cause of action and requires a separate factual foundation not set up in the plaint. (ii) Transfer of Property Act, 1882, S.44 -- Gift by Co-Owner -- Undivided Share in Joint Property -- A co-owner in possession of an undivided share of joint property can validly gift only that share, without consent of the other co-owner, where he is not the exclusive owner. The donee acquires title to the undivided share alone, and her right to a specific portion crystallises only after partition of the property by metes and bounds.
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