Civil suit or not
Sita Vallabhav
(Querist) 18 October 2014
This query is : Resolved
Respected Sir...
I earnestly request your valuable time for a query.. I give hereunder nature of the property.
My grand father's property ( which he got from partition of his father) was partitioned in 1959 after my grandfather had died before 1959.
The partition was done between his three sons. Three sons are Kalip, Balu and Atul.
The registered partition deed comprise of schedule A and schedule B. The deed is registered in 1959 itself.
Schedule A is share of Balu and Atul JOINTLY .... Schedule B is share of kalip. All of them died since. Both Kalip and Atul have family and children
Balu was unmarried, died in 1967.
So joint property under schedule A is enjoyed by the family of Atul till now.
I am member of the family of Atul. We were enjoying the property as per schedule B for the last 48 years or so... Schedule B comprises of land with two houses and paddy field which has shrimp farming income.
Both Atul's family and Kalip's family are staying in same city and are in very good terms.
Atul's family learns that legally, their share of property is Half of schedule B (Atul's share in that schedule) and another half in demised Balu's share.
The thing is, as a sincere effort, as suggested by some elders in the family, Atul's family approached kalip's family offering decent amount to clear the title in favor of Atul's family which most of the Kalip's family very much agreed.
But a couple of kalip's family raised issue saying that the properties must be disposed and shared. And also the income from the shrimp farming for all these last several years also must be shared.
This sudden stand of these couple of members of the Kalip family came as a shock to us.
In these circumstances we are forced to defend. and explored how to tackle the issue amicably or other wise.
Can family of Kalip claim share in Balu's share in joint holding of Schedule A?
If the issue to be sorted legally, is it wise Atul's family initiate partition suit or let Kalip's family initiate it?
If Kalip's family initiates partition suit, can Atul's family go for total denial and pray that since the ancestral property is already partitioned in 1959, it is not ancestral and hence cannot be disputed, as mentioned by points 1, 2, 3, 4, & 5 in the end of this mail.
If partition suit is initiated by either of the families, whether the court will order for sale of the property ? As Atul's family wants to retain the property and also would like to buy the other share, will the courts will order or suggest to offer the share for a "decent amount" or will it be the market price?
Respected sir, I once again thank you sincerely for your valuable time and humbly request your kind suggestion as and when time permits.
Does the following points can be raised?
1. The partition of the said ancestral property has been done legally way back in 1959. Hence the H.U.F. is dissolved and the partitioned property has become the personal property of the individuals.
2. Since Mr Atul and his unmarried brother Balu were the joint co-owners of the share that devolved upon them after such partition then after the demise of such unmarried brother his share can be legally transferred in name of Mr. Atul.
3. Then question is that since such brother Balu was unmarried then his legal heirs would be his brothers. But since Mr. Atul had a joint co-ownership with such deceased unmarried brother then lawfully his locus standi as being the preferred legal heir can be established and the share will be inherited by Mr. Atul alone.
4. The property not being ancestral any more then the claim of the legal heirs of Mr, kapil in such property of Balu will not survive and neither their attempt to get any injunction against Mr, Atuls legal heirs will be maintainable.
5. In addition the limiation bar will debar such legal heirs of Mr, Kapil to file such litigation.
Please enlighten me sir...
R.K Nanda
(Expert) 18 October 2014
consult lawyer with papers.
ajay sethi
(Expert) 18 October 2014
1) it is better that deed of family settlement be entered into .
2) it should be duly stamped and registered .
3) if it is not possible then suit for partition should be filed .
4) it is immaterial whether atul family or kapil family initiates suit .
5) on demise of balu his share would devolve on his brothers atul and kapil being his only legal heirs .
6) on demise of atul /kapil their share would be inherited by the legal heirs of atul /kapil .
7) suit for partition would not be barred by limitation
8) contact a local lawyer
Devajyoti Barman
(Expert) 18 October 2014
the query is repeated which is replied earlier extensively.
Rajendra K Goyal
(Expert) 18 October 2014
Repeated query:
http://www.lawyersclubindia.com/experts/Partion-of-property-already-partioned-in-1958-502341.asp#.VEJrC_mUen0
V R SHROFF
(Expert) 18 October 2014
Too long a Query.. to go thru........
