Clarity in partition

Issues:

Can he sell his portion to someone else without waiting for the compensation to be decided?

Yes he can. Since the court has decide Compensation for breach of Contract instead of Specific Performance of Contract.

Can the youngest son apply for a partition suit for his portion ?

Yes.

Does filing of the suit require that the case between the second son and buyer has to be resolved before partition can take place.?

No not required.Since the Contract of Sale has not been completed and the Court is giving compensation order.However it is better if the case is resolved and the judgement is given.

Does the parrtition suit if filed by the youngest son come under connected matters of the case between the second son and his buyer? Or will it be treated as a completely new suit?

New Suite.

The lawyer hired by the youngest son though good is not completely trustworthy as he has withheld the information of case disposal and orders.Can the youngest son change the lawyers without getting an NOC from the old lawyer? All the fees have been paid up to the lawyer for discussed works. But no written document exists regarding the works to be done and the amount to be paid. Can the vakaltnama given to the lawyer be cancelled.

Yes can be cancelled without NOC if all fees have been paid.It is the right of the client to choose his attorney.

How to get the extra names removed from the encumbrance certificate? Can it be done online?

Let us first understand, what is ENCUMBRANCE? – The dictionary meaning of the word encumbrance is, ‘a claim on property or assets’ or ‘a mortgage’. An encumbrance is a legal claim on a property that affects the owner’s ability to transfer the ownership of the property. Encumbrance means whether the properties have any lien on them, whether attached by the court, whether mortgaged or sold etc. by the owner of the said properties.

An encumbrance certificate is evidence that the property in question is free from any monetary and legal liabilities. An encumbrance certificate contains details of all transactions done on the specific property.

It shows the records of transcations of sale, loan ,gift , lease etc as recorded by the sub registarar.

Cannot remove name.

Can a partition suit be filed online?

No.

 

1. The partition suit filed by the youngest son will not get affected by other cases - like the one of the eldest son, or the middle son - in any manner.  After all the youngest son is only asking for his share in the property.

2. When already a partition suit has been filed by the youngest son, where is the need to file another partition suit - that too ONLINE?

3. Yes, the youngest son can change the lawyer.

4. The extra names - like the buyer from the eldest son and the buyer from the second son - cannot be removed from the encumbrance.  But again, that in no way will affect the partition suit or the share of the youngest son.

If a valid contract has been entered into and if one party is trying to wriggle out of it, then the other party can approach the Court to compel the one who is trying to wriggle out to perform the contract.  This is called specific performance.

If at all that has to be enforced then that will be against the eldest and second son and not against the youngest son, as the youngest son did not take part in any contract whatsoever.

Even assuming that decree gets passed against the eldest and second son that they have to give their share of the property to the buyers; again what the buyers will get only the 1/3rd share in the property - BUT NOT ANY SPECIFIC PORTION.  This is for the reason that no real partition of the property (in metes and bounds i.e. by clear demarcation of the portions) between the brothers had taken place.  That has to take place sooner or later.

In any case, if it is a dwelling house, then the buyers will not be able to disturb the possession of the property by the youngest son and the buyers will not be able to enter the dwelling house and live therein.  In otherwords, no outsider will be permitted to live in the dwelling house when one co-owner (the youngest son) is living in that property.

Section 44 of the Transfer of property Act, provides as under:

"Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same' but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house." 

The section 44 of Transfer of Property Act deals with rights and liabilities of a transferee from a co-owner, as to the enjoyment of the property transferred ( should be immovable for this section).

The first part of the section merely incorporates the principle that a person who takes transfer from another, steps into the shoes of his transferor, and is clothed with all the rights and becomes subject to all the liabilities of his transferor. In short, we can say that he becomes as much a co-owner as his transferor was before the transfer.

The second part of the provision provides an exception to the general rule stated in the first part and is based on convenience. It is designed to prevent an outsider from forcing his way into a dwelling house in which other members of the transferors family have a right to live.