Division of property
vishal vishwakarma
(Querist) 01 December 2014
This query is : Resolved
respected sir,
i am living in a half part of property which is about 45 X 55 sft. and the second half is in cover of my brother. the real owner is my mother and she died about 5 years ago. my father also died 2 years ago. i have 4 sisters too. now according to law the whole property should be equaly divide between us but no one of my sisters and brother are wanted to divide it. so my quarries to you that-
1. what can i do for division?
2. any one of them can sell the property if they have papers of property without my signature?
3. what will be the disadvantage of it if the property will not divide for a long time ?
4. can i construct the upper floor over the part of my residence ?
i am requisting to the concerned expert please give me th answer of these quarries.
thanking you
ROHIT SHARMA
(Expert) 01 December 2014
1. The best recourse would be file a civil suit to seek succession certificate. This will enable all the legal heirs to be entitled to their share in such property.
2. Later after getting such succession certificate then file a civil suit u/order 20 Rule 18 of C.P.C. seeking partition and possession of shares.
3. But since this is a house then the partition cannot be done in metes and bounds but if a family settlement is arrived then the division of the house portion can be done. If this is not possible then the court can order for auction/sale of the house and then the proceeds will then be distributed as per the quantum of individual share. Along with this application for partition you can file a supplementary application seeking injunction u/order 39 Rule 1 C.P.C. restraining all the other legal heirs as not to sell the house to any third person. The balance of convenience would be in your favor and the stay will be granted.
4. In the meantime if you wish to construct a upper floor on the part of your residence then you can do so by tactful means.
5. If need be and you feel to have further resolution of the issue and wish to seek further legal guidance you can get my contact details by clicking my name shown in the L.H.S margin of this reply format.
6. Further consultation will not be a part of this free query. Some moderate remuneration will need to be paid.
Rajendra K Goyal
(Expert) 02 December 2014
1. You can try for registered family settlement.
2. They can sell their portion.
3. They can claim, it may not be possible for amicable settlement as the position is on today. Intervention of next generation may increase at later stage.
4. You can construct, but the portion may not come in your possession if partition occurs.
Better try to have amicable settlement / buy / get gifted / get registered relinquishment deed from sisters if they are not interested in living in the portion. The position may turn complicated in coming time.
ajay sethi
(Expert) 02 December 2014
if no amicable settlement is possible and your parents died intestate file suit for partition . obtain an injunction restraining other legal heirs from creating third party rights . you cannot construct upper floor without consent of other legal heirs
Dr J C Vashista
(Expert) 03 December 2014
I agree with Mr. Ajay Sethi, onlly option is filing of suit for partition, possession (if not there), permanent injunction and mesne profit (for the property possessed//held by others).
T. Kalaiselvan, Advocate
(Expert) 05 December 2014
a partition suit with ancillary applications will be the best advise if no mutual consensus arrived.
