Partition: to be or not to be?

Let us k now whether the trust is registered one,according to your grand father the selling option should be unanimous., not unilateral, so on this grounds partition suit can be contested, but any sale of trust property should be  done through court, even selling options are there for the trustees.

Adv Raghavan, thank you so much for your reply.

As I said earlier, my grandfather's Will was not probated but my father and his siblings chose to make a Family Settlement (not registered) instead. and followed it for the past 30+ years. My father was the biggest beneficiary of the Will in terms of allotment of the premises, but he made a compromise in the Family Settlement due to the complexities in probating the Will as it was sure to be contested. Consequently, the Board of Trustees as mentioned in the Will remained in the background and it was not registered as such.

Now my questions are:

1. I have heard that even though the Will was not probated yet the property devolved automatically to the Board of Trustees upon the death of my grandmother (my grandfather died before my grandmother). Is this true?

2. Will we have to probate the Will now? Then how difficult will it be to probate it after 60+ years. All witnesses and the first beneficiaries i.e. my father and his siblings are all dead. Please keep in mind that besides the signature of the Settlor's (both my grandfather and grandmother), and the witnesses, this Will was also signed in token acceptance by my father and his siblings.

3. So, as I said that the the Board of Trustees was not registered. But still all sale has to be done through court , as you said?

4. That both under the Will and the Family Settlement, my father had the biggest allotment of the premises and consequently we have the largest area-wise possession of the premises for the last 30+ years. I have also heard that if partition takes place then there is a possibility that  the share of the premises of my father and his siblings can all become equal. Now, is there a way to factor in our highest allotment and possession for share determination?

Thank you again Adv Raghavan for your efforts.

If the Board of Trustees was not lawfully constituted by registration it has no legal validity. Once it is not valid in the eye of law no board member can exercise his authority. The property appears as inherited property from the ancestors, so every body has equal right,title and interest in the property.  When the deed of Family Partition was not registered it will be treated as merely a family arrangement to use and occupy the mutually apportioned portion. Partition Suit is a continuous and long legal process which if the share holders of the property desires can prolong it for next three generations..

Another option besides the other options  is if the said Will is in your possession, give a try for probating the same through competent court of law, which will solve many issues amicably apprehending fear of  losing the shares by other heirs.  While this being an option, do not give up the injunction suit in between so that some third person is not taking advantage of the situation by selling some portion of the property to anyone.

So far I could understand from your statement the property under the query is a joint, undivided and non-apportioned property which is being occupied by the heirs of ancestors by mutual arrangement of residency.  Under such circumstances if any body sales his portion of residency it is void ab initio unless the property is lawfully partitioned and mutated no body can sell his occupancy.

Thank you Adv. Biswanath Roy and Adv. T. Kalaiselvan for your valuable input.

Yes, the Will was with my father so we are planning to probate it as soon as possible. 

Our goal as stated is:

1. Firstly to stop partition and staying in the present format if possible. But as it appears that since the Board of trustees which was originally supposed to be composed of my fathers and his brothers and later on trickle down to the next generations as per formula of one member per family was not registered, so putting forth the selling clause in the Will of "unanimous and not unilateral agreement amongst the Board of Trustee members" as put forth by Adv. Raghavan might not work. So can this be replaced by saying that unanimous agreement amongst all shareholders regarding selling? Or, can we ask the court to direct the formation of a Board of Trustee correctly from the present generation as per direction in the Will?

2. Secondly if partition cannot be stopped we aspire to have the partition as per the allotments in the Family Settlement/ arrangement (unregistered) or the Will or a similar compensation.  

     This is because my father has the largest allotment both in the Family Settlement and the Will and we have been staying so for the past 30+ years. So just because my father and his brothers did not probate the Will or register the Board of Trustees, so we should not be penalised. We from our part are willing to probate the Will now.

3. And yes the more is the delay the better it is for us as the others want to sell off to the real estate guys fast. So any input regarding this will be helpful including possible ways.     

You have suggested two options, out of which, in my opinion, the second one sounds meaningful and feasible.  Your father should not be a sufferer just because the trust was not formed, nor the family settlement was not acted upon. You keep holding the injunction suit running so that nobody  tries to alienate/encumber the property without any decision about partition or settlement.