was deed of partition made ? if no partition deed is made you have to file suit for partition . in suit filed by your uncles you make a counter claim to claim share of rent of 4 shops from 2009 til now
Civil Issue
Hello, My Name is Manoj Kumar, I am from Bangalore.... We are staying in a house which was previously into my father’s possession and in [deleted] my father had partitioned the house to the names of his 3 brothers who are residing into my grand father's (Grandfather is Deceased) Property... During the time of partition my father had an oral agreement with all of his 3 Brothers, saying till the Grand fathers (i.e My Fathers Father) house is been partitioned our family will be residing in the same house (i.e., which is been made partitioned to his brothers)... And also the 3 Brothers are all collecting the rents of 4 shops obtaining from the Grandfathers building without any share given for us from the period of 2008 till now... Now one of the Brother whose possession we are residing has filed a petition in a Civil Court stating that we have to pay an amount of Rs. 5,75,000/-(Rupees Five Lakhs Seventy Five Thousand) calculating the damages to the tune of Rs 7, 500/- per month rent for the period from [deleted] and 75,000/- as advance amount, till we quit and vacate and hand over the vacant possession to them and also to pay Rs 50,000/- towards damage causing to the building... And very recently we have also filed a FDP for the partition of my Grandfathers house... Please help me out with this problem as we did not bid with any written agreement with them and now we are into trouble...
Asked 10 years ago in Civil Law
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14 Answers
unless the documents regarding the partition deed executed and other revenue documents are perused, clear opinion cannot be deduced. if you can come down to office, we can suggest you the best way.
pls clarify us which your portion and whether you have stayed in that portion as a tenant and what authority you have stayed in the house what is your portion of the property.
In whose name is the house mutated in revenue records? As per your own statement of facts your father had partitioned the house among his brothers. Was this a written partition? If it was an oral partition then did your father make a memorandum of partition? On what basis has your father's brother now filed the case for making him liable to pay the amount claimed, more so in view of the fact that your father is not the only owner of this house?
Without perusing the contents of the partition deed, if any, and also the case filed by your father's brother it is impossible for us to say anything.
Oral Agreement and partitions are not legally binding. So you can file partition suit along with your siblings and mother. If the above referred civil suit is for partition, please make your claim in the same suit.
Thanks for all your answers... Yes the partition deed was a registered one… It was executed on 13/01/2009… Totally we had 6 properties in which Item no 1, is of Grand fathers, we were all living together as a joint family till May, 2008… All the Brothers started fight with regarding a share in all the property, they had also assaulted to my father because in all of the property my dad was having one share and amongst that my father had a self acquired property i.e., Item no. 6. It was also partitioned to all of his 3 brothers without any share given to him in that… He got a single share only in Item no. 4 property which was previously into 4 shares… Item no. 2 and 3 has no disputes as it is equally sub divided… Item no. 5 is the one which we are dwelling now… It was previously into my dad and his one last brother name, and after partition it is also been registered to all his 3 brothers, except any share to him… On the time of registration of partition, all the brothers had orally promised saying among the total valuation of all the 5 properties (excluding Item no. 1) they said, they will give us amount of 7 lakh change and till the Item no. 1 is partitioned we can dwell into on of his brothers possession (i.e Item no. 5)…. We had filed an O.S suit on January, 2010 saying the partition is incorrect… But on November, 2012 the Court dismissed our case and decreed only a share of 7 shares of Item no. 1 property… Hence without any other chances we had to proceed with filing FDP.. The Advocate which we had previously consulted, later we came to know that he was amongst them and he cheated for us… We had also paid the same lawyer for filing FDP on June, 2013 but later he just gave us a false summons date.. And we came to know that he did not file any FDP case nor has gone through any of our case… He just solicited us that we could win the case as per he told… Now we have consulted another lawyer and he has filed the FDP and given us the FDP number as well… By the time of this we got a notice by one of the brother stating to vacate the house and to pay all his demands as I mentioned above…. I am afraid whether to pay for all of his demands… Please give me some suggestions regarding this, how to give an objection to their notice…. I had previously mentioned saying that they are still collecting the rent from Item no. 1 property without any share for us….
Asked 10 years ago
if you are aggrieved by order dismissing your suit file an appeal .without going through the papers we cannot guide you . since you have consulted another lawyer and he had opportunity of going through the case papers he would be in better position to guide you
Thank you Mr. Ajay for the reply... To file an appeal, we have to pay so much amount i.e., the percentage in the current govt value of the property which we are filing to... We are not in the position to pay so much amount. This was told by many lawyers to us before filing O.S., and also asked we can appeal in the high court also… We mused over this matter and at last we decided, considering our financial background, we are not so strong to fight. Now I am in a ailment that I don’t have any evidence to show to the court, saying we had an oral agreement with them telling that we are residing in the property until the Item no. 1 is partitioned, They also did not redeem us the amount which they promised to give us even after partition is made… How cruel all my Uncle’s are even after they got much benefit from my father, now they have also filed a suit saying we did not pay any rent nor advance to them and residing in his possession…
Asked 10 years ago
You have the right to file an appeal against the order whereby and whereunder your suit has been dismissed by the lower court. The lawyers whom you personally consulted have rightly told you that the court fees is required to be paid over the market value of the property.
If you do not pay the amount then your appeal cannot survive in the court except if you can show that you are financially incapable of paying the amount. The courts can waive off the requirement of paying the required amount calculated with reference to the market value of the property if the person desirous of filing an appeal can prove that he does not have finances sufficient to pay the amount.
Since you have already consulted the matter personally with a lawyer it will be in your interest to act strictly on his advice.
litigation is an expensive proposition . you need deep pockets to fight in court . if you dont have money to go in appeal and pay court fees and legal expenses your appeal wont be entertained . go by your lawyer advise .
Thank you Mr. Ashish Davessar and Mr. Ajay Sethi for the reply… I acknowledge with what you both have said… That is why I could not fight back with APPEAL, because of my financial background… But I dint get any suggestion from your side asking for what would I do for which they have filed a case on us to evict a house… Do I need to pay all their demands and evict the house??? Or will the court agree for saying that we had an oral agreement as we can dwell in their house till the grandfather property is been partitioned by us? Can I also get all the mean profits of my Grandfather property in filing FDP? As the rents which are collecting by them without any share to us since May, 2008? Our advocate said we have to put a separate application for demanding mean profit, because in O.S. Judgment, it is said that only we are eligible to 1/7th share of that property, mean profit is not added in judgment… Please give me a suggestion regarding my evicting the house as well as for collecting the mean profit… I can send a copy of judgment and as well as the notice they have issued for us regarding eviction of house… Kindly give me your email id….
Asked 10 years ago
yes you have to vacate the house . your father had him self partitioned the house in favour of his 3 brothers . your oral agreement has no value . . as far as payment of Rs 7500 per month is concerned from 2009 you can in suit make a counter claim for rent due from the shops which has been taken by your uncles . for fighting case you need deep pockets . if you are bale to afford litigation go ahead .
The suggestion is simple-Contest the case filed by them. If you do not contest the case by engaging a lawyer then the court would obviously decide the case in their favour. As already stated by me earlier oral agreements have no validity in the eyes of law as they cannot be proved. The partition deed will prevail over any oral agreement.
Your advocate is right on mark. You can seek apportionment of rent by lodging a separate claim. Litigation is a very expensive affair. If you can afford the fat fees of lawyers then go ahead, else compromise the matter.
Thank you once again Mr. Ashish Davessar and Mr. Ajay Sethi for your suggestions… I have decided to contest the case filing a separate suit for them with a point of making a counter claim of the rents due from the shops which are taken by my uncles and also I believe my advocate is also working on it with any other ideas to fight, I will file the case ASAP… I am thankful for you’re giving time and concerning about my case and giving a suggestion as well… I would like to be in touch with you with further updates of my case… Have a good day…. Kind Regards Manoj Kumar.M
Asked 10 years ago
thanks for your appreciation
Thank you for appreciating us.
Hello Sir, As last time I had told that, I have decided to contest the case filing a separate suit on my uncles with a point of making a counter claim of the rents due from the shops which are taken by my uncles. But on last month i.e., 12/4/2014 we had mediation in the court and in front of Judge. We agreed that we will vacate the house within 12/5/2014, even they agreed. We also demanded we are not giving any rent or advance to them nor the charges for damages… They agreed for all our demands and got settlement… Our lawyer has to collect the court order copy… On 12/5/2014 we vacated the house and handed over the keys to them with getting signature on writings in a bond paper saying as per the case number so and so have withdrawn by him we are handing over the keys to him… But unfortunately one of my relative has taken the signature of my father on behind the same paper with a writings by his own handwriting saying that from 2008 December till now we did not pay any rent or advances to my uncles and handing the keys on 12/5/2014… They have kept the original copy with them and given a Xerox copy for us… I am afraid if the signature effects and causes any problem to us in future or for our case which we have filed a separate FDP suit asking for partition and demanding for the rents which they are collecting from our ancestral property? Regards Manoj Kumar.M
Asked 10 years ago
if your father has signed a document wherein he has admitted no rent was paid from 2008 till date in respect of property in your father possession and handed keys in full and final settlement it would be binding upon your father . it would not affect the partition suit but may affect your claims for rent in respect of ancestral property
Ok Sir, thanks for the reply. I think if he again files a suit for us asking for the rent and advance, there is only one way for us is we can fight by counter claim of those rents of ancestral property they are collecting till now… My advocate has told he will apply a notice to all the tenants to deposit the rents from now to the court itself, till the partition is made… Are there any chances for us to make them to evict the ancestral house which they are residing now?
Asked 10 years ago
thanks for your appreciation . litigation is long drawn process. you cant evict your relatives until final hearing of the suit