Partition suit, protecting current property share
Pinaki
(Querist) 23 May 2016
This query is : Resolved
My Father and his elder brother co-own in Pune a plot with a house constructed on it.
This Plot had been purchased by my Grandfather.
This plot approx area 4000 sq ft is located in a housing society.
My father has been occupying first floor of the house for over 30 yrs. All these years he has paid the taxes, loan installments for the property as
his brother was not staying in it.
Now after 30 yrs, my Father's brother has entered the house and he is occupying ground floor of it.
Ever since he has started living in the house, he has started troubling us by all ways and means making our stay difficult.
We are planning to temporarily move out of the premises but only after securing the first floor which has been in our possession all
these years.
Request you to kindly answer below mentioned questions:
1.Since the plot is undivided, if we leave the possession of our first floor, can my father's brother forcefully take possession of it? If yes, what can we do to protect our first floor when we are not living in it?
2.Can partition suit be an option? Are we elibible to file it?
3. is these any other option available?
Kumar Doab
(Expert) 23 May 2016
You have posted that "This Plot had been purchased by my Grandfather. "
It is felt that it is self earned/self acquired property of your grandfather.
Which personal applies in this case e.g. ; Hindu Succession Act?
Did your grandfather leave any WILL?
Is your grandmother alive and how many sons and daughters your grandfather had?
Your grandfather died in which year?
P. Venu
(Expert) 23 May 2016
Yes, the property belongs to your grandfather. The queries raised could be best settled by your grandfather.
Adv. Yogen Kakade
(Expert) 23 May 2016
As the share in the property is undivided, you can claim any part of the said property as your own property.
You can also file a partition suit to get your desired portion.
Adv. Yogen Kakade
Jurycon Incorporation
Advocates & Consultants
Email: juryconincorporation@gmail.com
Web: www.juryconn.in Call: 020-65248888 / 09225510883
Rajendra K Goyal
(Expert) 23 May 2016
If Hindu and grandfather is alive, he ca give property in his name to any one.
If Grandfather expired intestate, file case of partition and status quo application till decision.
Kumar Doab
(Expert) 23 May 2016
The author has not replied to any point.
Pinaki
(Querist) 23 May 2016
Please find the below mentioned responses:
You have posted that "This Plot had been purchased by my Grandfather. "
It is felt that it is self earned/self acquired property of your grandfather.
Pinaki: yes this plot was self earned/ self acquired property of my grandfather
Which personal applies in this case e.g. ; Hindu Succession Act?
Pinaki: Plot is not freehold. It is owned by united western housing society. My grandfather was lessee. When my grandfather was alive, he wrote an application to society in which he asked for removal of his name completely and add 2 sons names (namely my father and his brother) in share certificate and subsequently in property card also their names have been replaced.
Did your grandfather leave any WILL?
Pinaki :Yes. He has left a will in which he has given equal rights to both his sons. Please note that the property is totally undivided.
Is your grandmother alive and how many sons and daughters your grandfather had?
Pinaki: My grandfather and grandmother both have expired.My grandfather has only 2 sons. One is my father and other is his brother.
Your grandfather died in which year?
Pinaki: he expired in 2003
Pinaki
(Querist) 23 May 2016
Can we get our share in the property separated through partition suit? what will be the approx time frame for it?
Kumar Doab
(Expert) 24 May 2016
You have not replied to;
"Which personal applies in this case e.g. ; Hindu Succession Act?"
The name of your father and uncle is on property card and they are also beneficiary in the WILL. Your grandmother is also dead.
Both should have equal share.
Submit the WILL to the society...........and/or probate the WILL.
Registered family settlement is the best option.
Pinaki
(Querist) 25 May 2016
my uncle is not ready to settle for half share. he wants more and thats the whole problem. family settlement has been tried but is of no use. They are not ready to settle for their share in that case what should we do? uncle is not at all co-operative. Partition through court?
I did not understand your question Sir regarding hindu succession act. Can you please elaborate?
P. Venu
(Expert) 25 May 2016
Yes, your father can file a partition deed.
Pinaki
(Querist) 25 May 2016
thank you Venu Sir.
T. Kalaiselvan, Advocate
(Expert) 28 May 2016
This property now belongs to both of them equally and since both of them have occupied each floor, they both can remain with them as their share in the property left behind as bequest.
The common areas will remain as UDS and common for both.
However to be legally confirmed of this position your father can file a partition suit seeking partition and separate possession of the property where he now dwells.
For your information, kindly do not allow the property (house) to remain vacant which will lead your uncle to forcibly occupy and it will be difficult task to evict him. Your father should not vacate the things from his property even if he is planning to move out temporarily.
Pinaki
(Querist) 29 May 2016
To Kalaiselvan sir:
Thank you for the valuable information.
Can we give the floor which we are occupying currently on rent? in that case we are not leaving it vacant plus instead of us, our tenent will occupy it.
Can you please tell me the time frame during which we will be granted partition after filing the case? also please note that the plot is square shaped with single approachable road. in that case if the court cannot conviniently divide it into two independent halves, how does the court grant partition?
Kumar Doab
(Expert) 29 May 2016
Are you Hindu?
What is the opinion of your own counsel!
Pinaki
(Querist) 30 May 2016
To Kumar Daob Sir:
Yes im Hindu.
we seeked advice from 2-3 advocates in person.
But we did not get any specific opinion.
As per them they said it might take long to obtain partition from court.
Also since the plot is square shaped with single approach road, and house constructed on it is in uneven format the partition obtained may not be beneficial for us.
Kumar Doab
(Expert) 31 May 2016
The name of your father and uncle is on property card and they are also beneficiary in the WILL. Your grandmother is also dead.
Both should have equal share.
When the matter lands up in court, the decision by court is the pleasure of the court.
Try to solve amicably.
If it is not possible, then approach court.
Pinaki
(Querist) 31 May 2016
Thank you kumar doab sir: thank you for your valuable advice.
My uncle is not ready to solve matter amicably.
He is claiming for more than half share.
I'm the only daughter of my father. i do not have any siblings.
My uncle on the other hand has 2 sons.
So he is claiming more share in the property. My father tried to settle matter amicably but he would not.
In this case we dont have any option but to request court to grant us our half share. Infact we are perfectly fine with whatever the court decides as long as we get our independent bifurcated half share with sellable rights for it.
Kumar Doab
(Expert) 31 May 2016
Engage a very able counsel well versed with local laws and specializing in family/property/revenue/civil matters.
