Upgrad LLM

kindly help!house partition deed/suit methods


Dear Sir/Madam

Kindly assist.  I am a victim of a cruel dysfunctional family in India.

Brief background & summary:

My father died in 2010 without leaving a will or any legal procedure for his 2 storied self-acquired house in India, leaving behind 3 legal heirs, myself, the daughter, my mother and my brother. Mother and brother live in father’s house in India. Because of the nature of my job I am required to live abroad most of the time in a year.  

I could not live in that house when I went back permanently in 2010 due to the unbearable and ceaseless mental torture and ill-treatment from brother and his wife. They have been misbehaving for last 15 years with me as they simply wanted to make it impossible for me to survive in my father’s house. I do not have a family of my own. Brother has arranged to live downstairs with his wife and kid, occupying much more than 1/3rd of the entire property while widowed mother live upstairs and I share upstairs with her when I am in India. Exit entrance is common. Tried to amicably arrange for respectful independent arrangement with separate exit entrance for my and brother. He rejected all my suggestions and requests and he is aggressively controlling the whole show.   There is a back entrance exit which he refuses to use with some stories and is not allowing me to make my own separate exit entrance at the front of the house saying that will damage the house. But they are secretly planning to construct another room in the ground floor unused back portion sometime later, without consulting me or taking my approval, assuming I am also an equal co-parcenor in the house with equal share and equal rights as him. He & his wife is very abusive, aggressive, mean, extremely unkind and rude to me.

No legal partition has occurred yet.

Recently I came to know that as per current living arrangement he has kind of agreed to make a family partition deed legally separating top and ground floor,– top in my name and entire ground floor in his name which is Ok with me , (except that he cannot construct another room in a land that is outside the walls of the rooms he is currently using at the same time, prohibiting my freedom to make another exit entrance at the front and disagreeing to use the existing back entrance after some renovations) but not agreeing to separate entrance arrangement for some reason.

Questions:

  1. 1.       Mother gave me a gift deed in 2010 saying she is giving me 1/3rd of her undivided share of first floor based on current living condition, plus with my own 1/3rd share, I get 2/3rd of the property – the gift deed is registered. Is this deed valid and can be used to my favor?
  2. 2.       Should I go ahead and agree with the floor partition (minus the exit entrance issues), if yes, kindly recommend what all should be included in the deed in order to make it a document without any encumbrances
  3. 3.       Do 3 of us need to sign the partition document or just me and brother saying mother will continue to live upstairs till her end?
  4. 4.       Does the partition agreement deed need to be registered
  5. 5.       How can I apply for separate title of the first floor in my name
  6. 6.       Can I file a partition suit thereafter, praying for separate and independent access to the house and approximately how long will such case take?
  7. 7.       This would be a civil case so do I need to attend hearings? That will be very tough as I am not in India most of the time
  8. 8.       Can he construct a room in the empty unused garden space downstairs without my approval – if they do, what measures can I take
  9. 9.       How else can he harm me?
  10. 10.   Anything else I need to do or be aware of?

 

I will really appreciate your kindest help and guidance as I am being treated terribly and living with acute mental agonies, suffering and fear.

Kindly let me know if you have any questions in order to advise!

Thanks & Warm Regards

Ms. Faith.

 

 
Reply   
 
FIN

 

You can pray to court to grant Injunction for any construction and partition of the property and place on record the Gift deed.

Hope the gift deed is not conditional e.g. Right of mother to live till she is alive or any other condition……………….Whatsoever it is  bring it in the knowledge of your lawyer.

The passage in front, back and garden may remain common. This would be your handle on him.

If amicable/negotiated partition is achieved, prepare a map and register the partition deed and map.

If any alteration is to be made in the structure and approval from local authority is required, all LR should apply and obtain the same. The approved map may be produced in court. Obtain certified copies of Imp.Documents from court too for record and reference. In future if the need be.

 

You may attend the court on imp. dates that your lawyer can update to you. Your lawyer can represent you however for your interest you should maintain proper contact and keep yourself updated.

 

 Consult a local lawyer in person with all docs on record and understand merits in person proceed further under expert advice of your lawyer.

 
Reply   
 



Thanks for your kind reply. Just wondering, are you a lawyer?

First:The gift deed is not conditional but different lawyers saying different things that gift deed on unpartitioned property is not valid etc, mother cannot say 1/3rd of undivided share of first floor given to daughter etc. Hence kindly clarify if  the gift deed is OK and valid i can use gift deed to my advantage and when to use it ideally.

Secondly: The passage in front, back and garden may remain common. This would be your handle on him.--what does it mean? It would be great to have the back garden cum passage as the comon area because he is conveniently choosing which areas can be common.

But does it mean i cannot get / pray for separate and independant exit entrance to the house in the suit?

Thirdly: He is objecting to me making front separate exit entrance saying structure will be damaged. 

"If any alteration is to be made in the structure and approval from local authority is required, all LR should apply and obtain the same." ---- What is the process? How can I pray for the same? What is LR?

Fourthly: Certified copies of what?

Kindly advise / summarise the best possible steps in a sequential order. 

Anything else I missed - please enlighten me. I am truly abused and harassed for over a decade. 

Thanks & Regards

Ms. Faith.

 
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Also dear advocates.....

  1. if negotiated partiton deed is achieved with certain issues incompletye or unaddressed due to disagreements, after signing a negotiated deed, can i file for a suit, immediately? 
  2. Can I apply for title of the first floor for myself after the initial negotiated deed is signed by us?
  3. Can the deed be signed only by me and brother?
  4. How long such case can last in India?
  5. Is settlement possible once case is filed on outstanding matters?

It is getting very difficult to consult lawyers from abroad because different lawyers giving different suggestions and me gettting more nervous and puzzled. My time in India this year will also be limited hence I am trying to create a clear road map before I finalise travel plans.

Hoping you all will kindly be with me through this.

--an abused harassed tormented sister.

 

 

 

 

 
Reply   
 
instructor

First of all you have to obtain legal heir certificate from the sdm/tehsil of your area , you three i.e you, your mother and your brother are the legal heir of your deceased father, The whole property of your father will equally divided into three equal parts you all three are entitled for 1/3 share in the property, divide yourself the property amicably and then registered it in your name , once you all get 1/3 share on your name only then your mother can transfer her share by making registered gift deed or release deed in favour of you , before this your mother's gift deed is invalid , take possessions of your share with you now you were the sole owner of your share , if your brother is trying to construct the room illegally and you want to restraIn him then obtain the injunction order from the court.
 
Reply   
 
instructor

If negotiation not done accordingly then you can file a civil suit for partition in the civil court .
 
Reply   
 

Thanks Laxmi Kant Jee.

Based on current living situaiton, he has somewhat agreed to merely demarcate the first floor rooms to me and ground floor rooms to him, minus all other aspects, passgaes etc will be upon his convenience as i see.
  1. Where can legal heir certificate be obtained from? Can lawyers do that?
  2. Can we not do partition deed without the certificate? I am going to India for few weeks only hence need to shorten and fasten the process.
  3. ***Can he make all the decisions himself like this in a shared property, example stopping me from making separate exit entrance saying house will be damaged, they are not willing to renovate and use existing back entrance, making decision to make a room without seeking my approval etc??
  4. ***What will be the easiest and smartest way for me to pray/seek separate exit entrance?
  5. **If a negotiated deed is obtained - with some demarcations, not everything....I assume you said i can file a suit for the remaining unresolved issues, is that correct Sir? If that is correct then, how long will such a case usually last in India?I live abroad and am all by myself. It is getting impossibly difficult to handle all this, hence these questions. 
  6. *** Do i need to attend hearings in a civil suit? That could make it even worse for me!

fervently request a detailed response to all of the above points....and appreciate your kind help.

(Just curious, are you a lawyer?If yes, can you send me your detailed contact information.)

Thanks & Regards

 

 
Reply   
 
instructor

1. As earlier i said you can obtain legal heir certificate from sdm/ tehsildar office , you have to give an application regarding seeking legal heir certificate you have to give details of you all three legal heirs like your name , marital status , age , relation with deceased person and your address , with this application you have to submit photocopy of death certificate of your father, address proof e.g ration card & affidavit , engage a local lawyer for this work he will do it himself, he know how to obtain legal heir certificate without your presence before the patwari / field officer 2 . Without this legal heir certificate you cannot do anything because you are not the owner of that property , you go to abroad instruct your lawyer what you want inbetween he will get ready all the relevant document for you . 3. Your brother can not take all decision himself you three will take the amicable decision for partition otherwise if matter will reach to the court it will take to many years 4. get your portion in your possession and then alter as you wish 5. try to do amicable solution don't leave any point for court , get done partition in a way no one of you raise any objection , in some points do compromise also and get partition as per your need . 6. think last to approach The court try to solve it outside The court , consult your lawyer and take his guidance before making any legal document .
 
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FIN

You may obtain mutation record (fard) from local Patwaari and check if names of legal heirs have been entered. If yes your lawyer may opine that the gift deed may be acceptable.

Ideally all legal heirs should sign the partition deed.

If the passage in front, back and garden can not be divided it may remain common.

You can and you should pray for separate and independent exit entrance to the house in the suit or the entrance and exit has to be common.

If making front separate exit entrance shall damage the structure then it has to remain common.

The alterations in the map/structure are either approved by MC or Development authority etc…………….under whose jurisdiction the property falls. If approval is required it should be obtained.

Certified copies of all docs that are produced in court but are not provided to you can be obtained from court.

Don’t sign a negotiated partition deed if anything in it is not acceptable to you or is to your disadvantage or is detrimental to your interest.

Once the partition deed is accepted and registered it shall become in force you may be at disadvantage. Therefore do your home work properly.

If floor wise registry is permissible at your location you can apply for it along with map.

If it is not then the registered partition deed with map shall be with you.

You can obtain both or either of …………………..legal heir certificate from Sub Registrar, and succession certificate from jurisdictional court (Civil/session/HC) too……………………………………as suitable to you. Or as required for your purpose.

If the settlement arrived during meeting is not beneficial then let the court partition the property.

 

Online discussion does have its own limitations, hence consult a lawyer dealing in such/revenue/civil matters in person with all record.

 
Reply   
 

Thanks Mr Doab. Appreciate your reply.

I live abroad now hence getting very difficult to obtain clear information from local lawyers,hence an ardent need to get clarity here, please.

Qs from your portion:

1. The alterations in the map/structure are either approved by MC or Development authority etc…………….under whose jurisdiction the property falls. If approval is required it should be obtained.----How are such approvals obtained?

2. If I sign a partition deed ONLY for the floors demaracation, can I then file a partition suit seeking COMPLETE partition saying I am unable to enjoy property pacefully and need separate & independant entry exit access to the building? is this doable and safe to do..what are the chances of success of getting separate exit entrance? there is a back exit and entrance which they can easily renovate and use - but they are giving me awful hard times to do that - please advise how that can be pressurised and achieved. 

3. For constructing a room by brother at an existing back exit and entrance, which they are refusing to use, but have disclosed hidden agenda of constructing a room there in future..(that should be a common space if front area is common according to them) -- for any such construction of rooms, d they need my approval/my clearance too as i am a legal heir?

4. what happens if in mutation record, only brothers name is seen or deceased fathers name still?Bro is not giving me a copy of mutation / curent corporation tax record

5. still not sure what you mean by certified copies.

Are you an advocate? if you are a lawyer, can you kindly provide your contact details and address?

Thank you very much.

 

 
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