legal demarcation/boundaries of property

shyam lal (Querist) 03 June 2021 This query is : Resolved
Deceased registered WILL of father (self aquired) mentions 50% equal share among two living sons.Query,can one go in for PARTION SUIT (for physical demarcation as there is no mutual understanding among brothers) with out getting mutation done in their respective names in the Nagar Nigam revenue records

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This discussion clarifies that you can initiate a partition suit to physically demarcate property and fix boundaries, even if the property hasn't been mutated in the revenue records. While amicable settlement is encouraged, a partition suit can be filed in civil court if brothers cannot agree on shares. Mutation is a separate administrative process and does not prevent a partition suit from being filed.

kavksatyanarayana (Expert) 03 June 2021
Try to an amicable settlement. If there is no other option than to file a partition suit before the court, which may take some years to get disposed of. In some of the major cities, the probation of a Will is also a must.

T. Kalaiselvan, Advocate (Expert) 04 June 2021
To enforce the bequeath made in the Will, the beneficiaries may try to resolve it amicably between themselves.
If either of them is not agreeing for any consensus, then the aggrieved beneficiary can approach court of law with a suit for partition to divide the property equally on metes and bounds and to allot one such share with separate possession.

Dr J C Vashista (Expert) 04 June 2021
Where is the bequeathed property located to determine whether the "Will" stated to have been executed by deceased father is required to be probated or not.

Mutation of property in the name of beneficiaries of the "Will" shall be decided on the basis of above question.

However, mutation has no concern with partition of the property between two brothers and a suit for partition and possession has to be instituted in the civil court / revenue authorities of jurisdiction , if they are unable to settle their share / demarcation / distribute it amicably.

shyam lal (Querist) 04 June 2021
Dear advocate T.Kalaiselvan and expert Kavksatyan, my simple query was can one file a partition suit with out filing for mutation in the Nagar nigam/municipal revenue records?

shyam lal (Querist) 04 June 2021
Attention Expert Vashista , ,is it first get the mutation done in the municipal records or one can file a partition suit without getting the mutation done?

T. Kalaiselvan, Advocate (Expert) 04 June 2021
The partition suit has nothing to do with the mutation of revenue records.
If you are submitting an application for mutating the property records without partition then the mutation records will be on the joint names, for which you may have to once again apply for mutation of individual records after the partition takes place.
Hence you better file a partition suit, get your share of property duly partitioned by metes and bounds by a decree and judgment of court of law, get it registered and after that apply for mutation of revenue records to your name for the share of property you have been allotted by court as result of the partition suit disposal

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ashok kumar singh (Expert) 04 June 2021
agreed with views of earlier experts, therefore no further comments, so far.
thanks.

shyam lal (Querist) 04 June 2021
Dear expert Ashok Kumar Singh ,answers to questions are welcomed ,the query demands answers and not agreeing to veiws

Dr J C Vashista (Expert) 05 June 2021
Dear Mr. Shyam Lal,
I have questioned location of the property stated to have been bequeathed by father (since deceased) in favour of his 2 sons equally since it is compulsory to obtain probation of will in all 3 Presidency towns ie. Bombay, Calcutta and Madras, however, it is optional to obtain probation of the will in other parts of India, consequently the property involved/ bequeathed in the "will" can be mutated in municipal records.

Mutation has no relevance to demarcation / partition of the property devolved / bequeathed by testator (deceased). However, transfer of title in favour of beneficiaries of said document of "will" shall have to be decided before seeking partition and mutation.

shyam lal (Querist) 05 June 2021
Thanking you expert Dr.Vashista,for your info the property is situated in U.P.secondly I have been told Probation is not applicable to Muslims & Christians.is it true or false.

K Rajasekharan (Expert) 05 June 2021
Yes, it is possible.

That is the direct answer to the original query under this thread which later took a roller coaster ride.

One person among the two, who jointly own the undivided property with equal proportion, can file a partition suit to get his property demarcated and boundaries fixed in accordance with the Will.

The person can approach the court even if the property is not mutated. Whether the property is mutated or not, is not a matter to be considered or decided by the court when they examine the partition suit.

Mutation is a less serious thing than what the court does in a partition suit. It is being done by the executive wing, the Revenue Department after carrying out due enquiry by its officials.

If they do something unacceptable in the mutation or its processes, then also you can approach the court

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T. Kalaiselvan, Advocate (Expert) 05 June 2021
No probate is necessary for Christian and Muslim Wills.
Under Muslim law, male and female can make Will.
Will by Pardanasin woman is also valid but stronger evidence is needed to prove the genuineness of the same.
The executor is the most important person in the Will.
An executor has a duty to collect and realise the estate of the deceased, pay his debts and distribute the legacies as mentioned in the Will by the testator.
The duty of the executor is to probate the Will in a manner known to law.
The court shall grant probate only to an executor who has been named in the Will.

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