Partition suit
Rahul Gupta
(Querist) 05 February 2015
This query is : Resolved
My grandfather had 4 sons and they lived in one house which was in his name . My grandfather purchased another plot in name of 2 sons so that the existing house can be shared by the other sons.
But he died before transferring the house in their name. Now over twenty yrs after his death a son of a deceased bother residing in the new house has filed Partition suit against his uncles in the old house.
Can he be stopped from getting share in any legal way.
My Grandfather died suddenly without a will.
T. Kalaiselvan, Advocate
(Expert) 05 February 2015
The person who filed a partition suit seeking a share out of his deceased father's share in the intestate property of his grandfather is very much legal and valid. Why do you want to stop him, instead all of you sit, talk together and arrive at an amicable situation/solution instead of waging the legal war for years.
Rahul Gupta
(Querist) 05 February 2015
We wish to do so because he ha already got 50% share in one of the properties of the family and we were supposed to get 50% share in the existing property .It was only due to sudden death of the Grandfather this could not happen. He wants to take advantage of that.
He has got his due share in the family property but wants a share in the old house which was supposed to go to other sons.
P. Venu
(Expert) 05 February 2015
What is the stand of the other brother who is the joint owner of the new property?
Rahul Gupta
(Querist) 05 February 2015
The other brother and a married sister are ready to relinquish their stake in our favour
Between 4 sons and 1 daughter(including my father) only the eldest is the greedy one
Rahul Gupta
(Querist) 05 February 2015
He is even holding my Grandmothers NSC money,jewelery and all her savings as he or his wife were nominee in everything including lockers which now it seems was preplanned.
Rajendra K Goyal
(Expert) 05 February 2015
In the given facts he is entitled for his share in the property.
ajay sethi
(Expert) 05 February 2015
nominee is only a trustee . you can claim share in NSC , jewellery , savings of your grand mother
T. Kalaiselvan, Advocate
(Expert) 05 February 2015
Well advised by experts. You can still arrange for an amicable situation where mutual decision will avoid litigation for years long. If not go for a partition and seek a share out of the properties he inherited as well.
Rahul Gupta
(Querist) 05 February 2015
How can I prove that both the properties were Joint properties as the new House was purchased in their name by the grandfather and ask for partition in his house too
prabhakar singh
(Expert) 05 February 2015
Have filed your written statement in reply to his partition suit?
Are all 3 brothers and 1 sister has been made party in the suit?
What claim has been made by you or your father and his brothers and sister about Grandmothers NSC money,jewelery and her savings ?
Rahul Gupta
(Querist) 05 February 2015
Yes all 3 brothers and 1 sister have been made party in the suit .Asking suggestions as reply has not been filed yet .At this time more concerned about the house as we are residing in it and have no other placed to live.
T. Kalaiselvan, Advocate
(Expert) 05 February 2015
You do not leave the possession of house at any cost, let the court case go on, you may in the written statement make a counter claim for partition and separate possession of a share out to the properties now under his possession too, this counter claim will make him to sit back and think about the back fire he may experience due to his present case and would prompt him to go for amicability. Consult your lawyer and give instructions for preparing written statement accordingly.
prabhakar singh
(Expert) 05 February 2015
If one of the brother from that side is ready to support your side and is not a co plaintiff in the suit, then in your written statement your father should plead that consideration for the sale deed in plaintiff's favor was paid from the HUF fund
by the Karta who was your grand father in whose very life time,about 30 years back(or state when all brothers and sister were majors) an oral separation in the shape of final partition took place amicably between the parties whereby house in question was exclusively given in share of two defendant brothers and property acquired by HUF funds was allotted to plaintiff and his brother in whose name the sale deed was and since then parties have been living separately with complete ouster
of each other's share and plaintiffs have since then have no access in the house in question as since then it remained in exclusive possession of you,the defendant.So the plaintiffs have no co possession ever since the partition.
If you succeed in proving this fact by evidence of his brother and sister,hopefully the court will believe your side of story as it is a dispute in a family.
P. Venu
(Expert) 05 February 2015
Learned expert Shri Prabhakar Singh has suggested the wise solution. The crucial aspect is the stand of the brother who is the joint owner or occupant of the new property. If he supports your cause there is a fair chance for the suit being dismissed.
prabhakar singh
(Expert) 05 February 2015
Thanks a lot to Mr. P.Venu for finding my reply convincing.
Rahul Gupta
(Querist) 06 February 2015
Will the statement of the other brother and the married sister would be sufficient to prove the oral settlement and that the both the properties are family properties or documentary evidence would be required. Also the parents of the plaintiff have had no other source of income other than that from the family business so how could someone having equal income from same sources have unequal assets
Rahul Gupta
(Querist) 07 February 2015
Also a lawyer has suggested us a plea of adverse possession since we have been living in the house for a long time and paying the house tax as well as the water and electricity bills in this house over a long period of time and our occupation is continuous and un opposed and known.
prabhakar singh
(Expert) 07 February 2015
YES!the statement of the other brother would be sufficient to prove the fact that
property in his and his plaintiffs brother name was purchased from the HUF funds of the family and belonged to HUF and in oral partition it was allotted to them as their share.As it would be deposition by him against his own interest in your favor,the court would be bound to give the same a great weightage.
A plain case of adverse possession is not my recommendation.
Dr J C Vashista
(Expert) 10 February 2015
You have adequately been advised by the experts, I agree with them. Now engage and seek opinion, guidance and advise of a local prudent lawyer.
Biswanath Roy
(Expert) 10 February 2015
I APPRECIATE THE STRATEGIC PLANNING AND GUIDELINES GIVEN BY LEARNED Mr. PRABHAKAR SINGHJI WHICH AS I BELIEVE WILL BE FRUITFUL.
