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Nav (...)     23 January 2011

Partion with out concent

Dear Experts, I have a query regarding the partion made on the property. Request you to help on this query.

The scenario is as follows.

Mother- Has five children. Daughter1, Daughter2, Son3, Son4 and Son5.

Daughter1, Daughter2 and Son5 have got the sites at other places as their share of property. Son5 sold his share of property. One site was available which was in mothers name. This is the site of highlight. This was supposed to be shared between Son3 and son4. Some kind of WILL was made for this, the content of which son4 did not know. When mother was around 75 years age, son5 came in between, along with son3 and mother cancelled this will. Immediately, a new partion was made. In this, 65% of the site with some small house was given to Son3.  There was a three floor house G+1+2+terrace room in the other portion of the site. Out of this, G+1 was kept by mother and 2nd floor and terrace room was given to son5 with 1/4 of the land of this building excluding common passage belonging to his share. There was a new Will made to transfer this G+1 to son3. This entire partion was done without the concent of son4. Mother has expired after 3 years.

son 5 is trying to sell this property. He has made all the documents legal and has also acuired some bank loan against his house share.

Now is it possible for Son4 to file a case to invalidate this partion an then to get the actual share?

 

Please advice.

With best regards,

Nav



Learning

 4 Replies

adv. rajeev ( rajoo ) (practicing advocate)     23 January 2011

He has to file a suit for partition and seperate possession claiming that the partition made is not correct.  Son 4 has to file an application in the suit u/o 39 r 1 as not to alienate against the son 5

Satyaprakash Sharma (Advocate & Legal Consultant)     23 January 2011

Some material informatoin is not provided by you.

1. who it was father or mother, who acquired the subject property;

2. Is parttion deed / agreement in writing? or same was oral?

3. Time lapse since then?

In anycase, you would need to file civil suit to get your share in the said property.

Nav (...)     24 January 2011

Hi Rajeev, Hi Sathyaprakash,

Thank you very much for your suggestions on my query. I apologize for one terrible mistake made in my query. The WILL was made to SON4 and not to SON3. This way SON4 got his share indeed. But again, he was not involved during the partition. I also got to know that earlier the WILL was made such that this entire building was meant for SON4 and other portion for SON3. Son5 intervened and made all the changes. SON5 is now trying to sell his property. Son4 is worried that if that happens then this property would go under litigation in future and his children would have to face problems.
So should SON4 still file a suit atleast to get back his full share ie, 2nd floor and terrace room from SON5?

SON4 is willing to buy this from SON5 with say for 10L. But SON5 is expecting 25L which is even twice the market value I guess.
Currently SON5 has loan of 9L on his share of house from some cooperative bank. There is also a tenant on lease in this house for 5L which SON5 has taken. Is it possible that SON5 could have got loans from multiple banks or also from some private financiers?

If at all SON4 buys this property from SON5, what precautions has to be taken by him?  Later after buying this property, can anybody (private financiers or other banks if financed for SON5) trouble SON4 for the money or seize the property?

The Partition deed is in writing and is also registered in subrergistrar office. The WILL is also registered. All this happened during 2003 and mother expired in 2006. Father was already expired.

Thanks for your expert advice. Have a successful day...

Best Regards,
Naveen

Rhonda Luna (HR)     24 January 2011

Ya, he can file a case because he is also a son of the property owner and he has a full right on that property.


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