Ancestral property - please help
rashee srivastava
(Querist) 13 April 2012
This query is : Resolved
Dear Eminent lawyers,
My grandfather had two sons. My father and his elder brother. My grandfather and my father stayed back at my native village and looked after our ancestral peoperty while my father's elder brother worked with the govt and was staying throughout his career in lucknow. My grandfather expired in 1990. After his death, my father got the complete documentation done in the name of his elder brother and himself. In 2008, my father passed away.
Since then, my father's elder brother has started disposing off the land in bits and pieces without ever consulting us. This resulted in lot of anti social elements coming nex to us because they purchased the land from my father's elder brother ata lower rate. At times, I also wanted to purchase the land from my father's brother but he refused to do so and sold it off to others. Now, I am facing a problem with the people who have purchased the land.
Questions.-
1. In such a case, can my father's elder brother sell off his share of land without a proper partition being done?
2. If he has sold off his share of a particular piece of land withpur partition being done, how it is decided that which side of the land will be mine and which side will be of the person purchasing the land from my father's elder brother?
3. If I am ready to pay the price of the land at the prevailing market rate, is ther any provision to make him offer his land first to my being his niece and neighbouring property holder?
4. Can the registry of the land be held back till the time a proper partition has been done?
5. The property also includes a house in the village, which if sold to anybody else will make my living ther unteanable. What can be done to prevent him from selling half the portion of his house which is also an ancestral property to anybody else?
I am under tremendous tension as my father's elder brother is selling off the land without a proper partition and also when he has not visited the village for the past 40 years. My father was only looking after the ancestral property.
Your reply will be very helpful.
Regards
Rashee
SAINATH DEVALLA
(Expert) 13 April 2012
Dear RAshee,
For your paternal uncle it is not ancestral property,but his share from his father's property.Legally he can do whatever he likes with his share.You cannot curtail him from acting on his own.For you it is ancestral property.You cannot compel him to sell to you.If possible go for a mediation with the village elders and solve the problem amiacably.
Shashikant V. Patil
(Expert) 13 April 2012
It's a ancestral property because, basically, it was owned by your grandfather first and after his death, your father and your uncle became the legal heirs of this ancestral property. Hence their share also will be calculated 1/2 each including landed and housing property. It seems that your father carried out documentation to enter his name and his brother name in the records of right after expiry of their father. But they have not partitioned among themselves and meanwhile your father passed away. Now your uncle with an ill intention deals with your share also. It is better to approach good advocate to file cases like suit for injunction to restrict him to sell any portion of land and suit for partition accordingly your father's share will declared and came to your possession.
Devajyoti Barman
(Expert) 13 April 2012
1. Yes but only his share of land.
2.Generally area of possession decides the share. If not then you have to depend on the decision of the court.
3.Yes you can enforce the pre emption clause.
4. No unless you have obtained the order of injunction from the civil court which is possible if you file a suit for partition by metes and bounds and asks for injunction against any transfer till partition takes place.
5. File a suit for partition and injunction.
Deepak Nair
(Expert) 13 April 2012
1. A joint property cannot be sold by one coowner without the consent of the coowner unless the property is partitioned.
2. It depends as agreed by the seller and buyer in the sale deed.
3. Yes.
4. Yes. In fact, registration can be done by one of the co-owner without the other's consent only after partition in the joint property.
5. To prevent the sale of the house, you are required to file a suit for injunction.
You should talk to your paternal uncle and try to settle the issue amicably. If the talks fail, then you should file a suit for partition.
prabhakar singh
(Expert) 14 April 2012
आप का मार्गदशन विद्जनो ने बिलकुल सही ढंग से किया है जिससे मै सहमत हूँ .
