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Santosh Kumar Dhondekar (LEGAL OFFICER )     05 June 2008

PARTITION OF PROPERTY

"A" the head of the family, use to run a tailor shop in a rental premises. He was having a wife along with four sons and two daughters. Later on, daughters got married. After some years A died and his four sons have started maintaining that tailor shop. Elder son use to maitain the said tailor shop and other 3 brothers use to help him doing the same. As time passed away, out of the earnings, they purchased the said rented premises by paying the purchase amount in lakhs. Everything was fine, but at the time of registration the elder brother got the property registered on his name. The other 3 brothers  out of love and affection, believed their elder brother thinking that they would also get the share as time passes away and continued to help their elder brother in maintaining the tailor shop and business. Subsequently, when the younger brothers requested their elder brother to provide them with their rightful share, he refused.

MY QUESTION IS HOW THE SAID 3 YOUNGER BROTHERS CAN GET THEIR SHARE FROM THE SAID PROPERTY?

note: For your information, the 3 younger brothers don't have any material proof or evidence to prove their case. only surrounding shop owners know that these 4 brothers are doing the business since long 30 years.

 

 



 5 Replies

Ajay kumar singh (Advocate)     05 June 2008

The younger brothers will certainly get their shares. They have only to prove that the family is still joint and that the property was purchased by joint family funds.The neighbouring shop keepers may give reliable oral evidence in this matter.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     05 June 2008

And to achieve this objective first you have to collect evidene of oiriginal rent records. You have to prove that :-
1) The property was rented in the name of your father.
2) After demise of your father the elder brother is looking after as karta of HUF.
3) The purchase of property by elder brother is as karta of the HUF which consits of all the brothers.
So now you can claim the partition of HUF and all the brothers will get equal shares.

Guest (n/a)     05 June 2008

care for everyone

lakshmanan (advocate)     06 June 2008

if three younger brothers are able to prove the source of money for purchasing the property in the name of elder brother as Kurtha or name lender and possesion still remain joint, they can file suit for partition in the court where the property situated

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     06 June 2008

My perception of the matter under reference.

The property under question is not an Ancestrol OWNED property.
The property under question was a "rental" property, which has no value / jurisdiction under the HUF.
The "Business of Tailor" was not done in a Ancestrol owned property.
The "Business of Tailor" was done in a "rented" property.
The "rented" property cannot be partitioned, under the Hindu Succesion Act.
The "BUSINESS" is not a "PROPERTY" under the Hindu Succession Act, as far "partition of immovable property" is concerned.
At the most the Ancesterol business or Traditional business that has generated a "business good-will".
The "BUSINESS" (i.e. the Tailoring business), may be termed as an "ancestrol" business, in which, out of which the "good-will", a partition of business interests can be carried out, mutually. (and not immovable property as in this case there is no OWNED immovable property)

The Elder brother, has "PURCHASED" the property, in his own name with his own earnings. This individual earnings, do not consitutute any RIGHTS of HUF to the other brothers, for "partition" purposes, as far as a newly purchased property in the name of an individual with his own private part of the earnings.

The elder brother was "maintaining" the business.
The other three brothers were ONLY "helping" the elder brother.
The three other brothers were only helping the elder brother (for justification purpose as a apprentice) in lieu of monetary payment (for justification purposes as a employee).

HERE, in order to prove that the property was purchased from "COLLECTIVE" earnings generated from an ancestrol business, to constitute a property partition, under the HUF ...

... the 3 brothers will have to prove with conviction that the new property was purchased from the earnings generated from "family & ancestrol business's" cumalative income.
The ancestral business (of tailoring) and the collective "EARNINGS" from such "ancestral business" and then subsequent purchase of immovable property from the money taken out of the earnings of such "ancestral business", may constitute as a property which could THEN constitute for partition for HUF purposes.

IMPORTANT : Here, even if the Elder brother has purchased the said property from his own part of his earnings, STILL the "ancestral Business" component or the "business good-will" component can be dealt with under the HUF clauses. The three other brothers have complete "right" to continue their "ancestral business" in the same property after paying their part of the requiste rent as their father was paying.
Either way the elder brother may end up losing complete control of the business in the same property he has purchased in his own name and further more the elder brother will not be able to refuse the other three brothers to continue doing their "ancestral business" in the same very property.


NOW, the above is a very dicey way to prove. THIS WILL REQUIRE DOCUMENTARY EVIDENCE.
The income-tax annual returns of the Business name, individual I.T. yearly returns, may be used to determine above factors.
Annual Returns of various agencies like the SalesTax, Muncipal taxes, property taxes .... may be collected as evidence for the above purposes by the three brothers BUT also same vice-versa can be done by the elder brother to prove his case.
IF (repeat "IF" ) the three brothers have irrfutable documentary evidences, then the elder brother could also be sued for "criminal breach of trust" & for "fraud".

- Oral or written affadavits of relatives / neighbours / customers / other agencies, are of no significance at the best may be useful as "secondary evidence", only for support purposes.
- Here maybe the Elder brother is correct and he may have really bought the said property out of his own earnings.
- Here maybe the three brothers are only trying to usurp the elder brothers property. ....

CONCLUSION : For HUF partition the property MUST be an ancestral property / family property AND NOT AN RENTED PROPERTY, at the time of death of the master family member.


Keep Smiling ... Hemant Agarwal

A QUOTE : "It is not because things are difficult that we do not dare, it is because we do not dare that they are difficult"

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