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How to partition

(Querist) 31 July 2014 This query is : Resolved 
Dear sir,

My case ... help needed

I and my mother live in a ancestral house and are in some bad financial conditions. We want to sell the house now worth 11 lakhs, but are facing problem..

FACTS:
1. Land was purchased by grandfather in 1957 , house built in 1967 and is still in his name.
2. He died in 1988 without will leaving behind 5 daughters and 3 sons. All lived in the said house.
3. The daughters (my bua) are married, alive and living in different cities. The three sons (tauji, my father and chacha) passed away in 1995, 2002, 2008. Only my father had one son.
4. As of today, I my wife, children and widow mother live in said house. Due to financial conditions, we want to sell the house..
5. Buyers are asking for signatures of 5 daughters (buas), my mother and I or a vaarisaan (succession letter) in our favour.

PROBLEM : the daughters deny to sign on sale deed or do any partiion

Ques :
1. As the owner (my Grandfather) died in 1988, do his daughters (my bua) have any right in the house.
2. If they do have right, can we get the house (our share of it) sold somehow or get our share of its value even when they refuse to do so willingly.
3. Will our share be 1/7 for my mother and 1/7 for me.

PLEASE HELP
G. ARAVINTHAN (Expert) 01 August 2014
As per Indian Succession Amendment Act, all sons and daughters are equal and each will fetch 1/8 th of share.

But since all the aunts got married long back, it would be sufficient to get the partition in to 3 shares as your father and uncles alone get shares.

So your father's clan ( you, your children and your mother) will get 1/3 rd share.

Get a legal opinion from an advocate on this basis and approach the buyer
P. Venu (Expert) 01 August 2014
You may also enter into a family settlement and get it registered.
Rajendra K Goyal (Expert) 01 August 2014
1 Your Buas are having share in the property.
2. Either you can sell your partitioned share or sell after partition.
3. You and your mother have total 1/8 th share in the property. i.e. 1/16 each.
josinpaul (Expert) 01 August 2014
Please mention your Religion.

If you are a Hindu then The Hindu Succession Act 1956 ( as amended in 2005) will apply. If you are a Muslim then the Muslim personal law applies and for Christians, Indian succession act applies. For all inter cast marriages Indian succession act applies.

ASSUMING THAT YOU ARE A HINDU:
The property of a male Hindu dying intestate shall devolve...
(a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule.

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule.

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased, and

(d) lastly, if there is no agnate, then upon the cognate of the deceased.

The class One heirs are 1.Mother. 2. Widow. 3.Daughter and 4. Son.

Assuming that Mother and wife of your Grandfather is not alive, the share should be divided equally between your grand father's sons and daughters. So each one will get 1/8 share of the property. Since your father died intestate the share gets equally divided between you and your mother. Since your Chachas also died intestate their share will go to their widows, if there is one. If your uncles were un-married, then the following will happen...

1. You and your mother will get the share of your tauji (since your father was living at the time of your tauji's death).
2. You will get exclusive share of your chaha's property.( since you are the only living class 2 heir at the time of his death)

So in effect(assuming that there is no living widows of your uncles) you are entitled to get 3/8 share of property (if your mother is willing to sign)

As a co owner there is very little scope for claiming adverse possession against you aunts so the only remedy is a partition suite. You can file the partition suite in a civil court against your aunts to get your share if they refuse to sign in the deed.

ajay sethi (Expert) 01 August 2014
agree with experts
R.venkatesh Naidu (Expert) 02 August 2014
there is no problem to sell your and your mother's undivided share in the entire property without your aunts signatures if the purchaser has willing to purchase. you clarify your purchaser about your share

1.firstly the property is self acquired property of your grandfather hence, the property has to 8 equal shares so, your aunts and uncles including your father got 1/8th share in the undivided property.

2. If your father is alive on the date of your uncle and uncle's wives your father has entitled in his brothers share if he did not alive at the time of their deaths your uncle's share devolved only to your aunts.
please clarify the date of deaths of your father and uncles and their wifes
what ever may be you and yourmother have jointly eneitled to 1/8th share in the property
T. Kalaiselvan, Advocate (Expert) 03 August 2014
Expert Mr. Venkatesh Naidu has given a clear picture and correct opinion to the subject issue. I agree with him.
Upon the intestate death of your grandfather, his self acquired property devolved upon his class I legal heirs,namely your father, his brothers and sisters (totaling 8 numbers). Thus, your father's original share in the property will 1/8th. All other legal heirs will be entitled to an equal amount of share in the property.
Presuming that your father's brothers were married and died intestate, their respective shares will fall on their respective class I legal heirs. All the sisters of your father are reported to have been married, hence if anyone of them is not living now, their share in the property will go to their respective class I legal heirs.
Now, assuming your fathers brothers were unmarried and died intestate, at the time of death of your father's elder brother your father was alive, hence your father's elder brother's share of 1/8 will be divided equally among your father, his younger brother and their 5 sisters. Upon your father's younger brother reported to have remain unmarried and died intestate, his 1/8th share as well as 1/7 of 1/8th share of property will be inherited in equal proportion by all his surviving sisters as on the date of his death because your father was not alive at the time of his death.
Thus, your father's 1/8th share and an additional 1/7 of 1/8th share will devolve upon his class I legal heirs i.e.,your mother and yourself. This undivided portion can either be sold as it is if there is a buyer or you can file a partition suit, get possession of your share under the legal partition and sell the property.
This being the position, do not ever try to sell the entire house which is illegal and also punishable offence under criminal law.


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