Obtaining possession of undivided portion of property

Querist : Anonymous (Querist) 16 April 2020 This query is : Resolved
I am owner of half share of a 3600 sft. residential plot of land in a Co-Operative Society at a prime location in Pune city.
I have managed to get my name mutated on the property card after obtaining a succession certificate from court towards my half share.
For this I have faced prolonged litigation for last 22 years by my younger brother, who is in full & absolute possession of the property. The premises are being used as an office by a business entity owned by my brother & he is living elsewhere.

Need advise on

1] How to proceed for demarcation & possession of my 1/2 share of the property.
2] Upon obtaining possession, I wish to sell the property. But the bye-laws of the society do not permit joint ownership outside blood relation, which
in my opinion itself is against any provisions under the MCS Act.
3] This means that I can sell my share to my brother only. But he is not ready to purchase the same at fair market value, in spite of having adequate
financial strength.
4] My brother is also not willing to accept my offer of a fair market value for his share.

What is the way forward to resolve the issue.

Follow Query

Report Abuse

KISHAN DUTT KALASKAR (Expert) 16 April 2020
Dear Sir,
You have to approach the Court for appointment of Court Commissioner and to file a report on the feasibility of getting your ½ either physically or by way of sale proceeds, court may decide.
Please CLICK LIKE and follow me if you feel my answers also helped you

Rajendra K Goyal (Expert) 16 April 2020
You said:
1] How to proceed for demarcation & possession of my 1/2 share of the property.
Reply:
File case for partition and possession in metes and bounds, if not possible by mutual understanding / agreement / with the help of relatives and friends.

You said:
2] Upon obtaining possession, I wish to sell the property. But the bye-laws of the society do not permit joint ownership outside blood relation, which in my opinion itself is against any provisions under the MCS Act.
Reply:
After partition get your portion entered in your individual name / separate property card. Try to sell it after that if such an action is in line with byelaws.

Rajendra K Goyal (Expert) 16 April 2020
You said:
3] This means that I can sell my share to my brother only. But he is not ready to purchase the same at fair market value, in spite of having adequate financial strength. My brother is also not willing to accept my offer of a fair market value for his share
Reply:
There is no reason for him to purchase your share on your terms till he understand that you have to sell it to him and he is in possession of it.

Raj Kumar Makkad (Expert) 16 April 2020
1. You might have inserted this relief in the pending petition of succession and if not, get it done instead of filing a fresh suit. You have not mentioned the stage of long pending litigation qua the said property but i presume that the same is still at the trial stage.

Raj Kumar Makkad (Expert) 16 April 2020
2. You need to challenge the objectionable bye-laws of the soceity in the high court so that the same may be got set aside. After all this clause is against the constitution of India wherein every person is free to sale/purchase the property from the person of his choice and he cannot be forced to sale to a particular class of persons.

Raj Kumar Makkad (Expert) 16 April 2020
3. You have already been advised to get the repeal of such discriminatory term of the bye-laws set aside through High Court so that every one in your soceity may be got benefitted.

Raj Kumar Makkad (Expert) 16 April 2020
4, Neither your brother comes to your terms nor you are ready to accept his offer so you need to adopt the procedure repeatedly suggested to you.

Raj Kumar Makkad (Expert) 16 April 2020
You should make a representation with the Registrar of Societies with prayer to direct the soceity to expunge the said term from its bye-laws being ultra-virus to the provisions of the constitution/Soceity Registration Act failing which go to high court by filing a writ petition.

Rajendra K Goyal (Expert) 17 April 2020
If byelaws are such, you must proceed to get these changed through High Court or otherwise.

Discuss with your lawyer in detail who has handled your case for such a long time.

P. Venu (Expert) 17 April 2020
Succession Certificate - how and from which court? It am appears that you have adopted a confused approach. So also, what is the source of your title?

SHIRISH PAWAR, 7738990900 (Expert) 17 April 2020
Dear querist,

You have to file partition and possession suit to get your share in the property and challenge the bye law not allowing to transfer the shares outside blood relation before co- operative registrar.

Regards,

Querist : Anonymous (Querist) 17 April 2020
Dear Shri Venu,
The court has issued a succession certificate for 1/2 undivided portion of the property after setting aside objections raised by my brother.
Using this, I applied to the land records officer for mutating my name on the property card. The mutation was also challenged & the same stands today after hearing on objections.

Dear Shri Rajendra Goyal,
I was thinking of appointing a govt. empanelled surveyer to determine the plot boundaries & demarcation of 1/2 portion. The plot is perfectly rectangular with access from 2 opposite sides. Thereafter approach the court for either physical possession or fair market value of my share.
Friendly settlement is out of question. My brother is perfectly aware of the limitations imposed by the existing bye-laws of the society. But just to cause trouble he is not ready to settle.

Dear Shri Raj Kumar Makkad,
As of now there is no pending litigation. I have managed to get favourable verdict in all the matters. Thereafter I got my name mutated on the propert card as per court orders. The society share certificate already has my name standing first as Member. I was not advised to ask for specific relief of clear demarcation & I had to fight tremendous odds to obtain the succession certificate, as my lawyer passed away during the pendancy of my application.

Presently I am without any able legal counsel, since the advocate representing me has passed away. I live in Mumbai & the property is in Pune.

As for challenging the society bye-law on ownership, I do not wish to challenge it before the Registrar of Co-Op Societies. I intend to make an application to the society to make an exception considering the circumstances surrounding my request. To resolve the matter, I don't wish to be at loggerheads with the society.

So the path forward, as I see it is
1] Appoint a Govt. Licensed Surveyor, get the boundaries & access point determined for 50% portion.
2] Issue a notice & demand possession as per Surveyer's report.
3] If 2] does not work, move the courts for enforcement of Surveyer's report & also, directions to the society (if the society is unreasonable).

Please guide.

My heartfelt thanks to every expert who has responded to my query.

Raj Kumar Makkad (Expert) 17 April 2020
After going through the subsequently posted facts by you, all experts shall suggest you to continue the searchof the able counsel to deal with your case. You can also avail the personal services of any of the experts of this site.

Rajendra K Goyal (Expert) 18 April 2020
As advised earlier, it is fact that there is no reason for your brother to agree on your proposal. As mentioned by you, your lawyer has expired, you should entrust another lawyer and proceed through court.

P. Venu (Expert) 18 April 2020
I am afraid that you are not on the right path. Mutation of the land records may offer solace, but not the solution. A government approved surveyor cannot get you the share in property nor can survey report be got executed. The only option is to file the partition suit, as a;ready suggested by the learned expert Shri Shirish Pawar.

Querist : Anonymous (Querist) 20 April 2020
Dear Shri Makkad & Shri Goyal,
Thanks for your inputs. I am indeed in search of a capable lawyer to take the matter to its logical solution.
Dear Shri Venu,
Thanks for your advice. I will proceed as soon as normal activities resume.

I will be thankful to all for receiving contact details of good & capable lawyers based in Pune. Kindly do share if possible.

Rajendra K Goyal (Expert) 20 April 2020
You are welcome, may revert in case of further development.

For lawyer, please visit court and make detailed inquiry.

P. Venu (Expert) 20 April 2020
You may share LCI database.

Raj Kumar Makkad (Expert) 20 April 2020
You are always welcome Mr. author as and when required any legal advice.