My grandfather died in 1960, and made an oral partition between his two sons before his death. Before the enforcement of oral partition, my father (his younger son) died leaving behind his wife and 3 children. Immediately after the death of my father, his elder brother refused to transfer share of my father into my mother name. He claimed that since the largest chunk of land was on his name through patta hence there is no share of his younger brother on that.
I have following questions;
1) is oral partition valid? Since I do not have any proof of the same. There has been no change in the land record ever since my grand father death.
2) My father's elder brother was only 7 years of age when he got patta land on his name. Being a minor is that possible? Does my father has an equal share in that patta land?
4) I have filled for a partition suit in a court of law. During the pendency of judgement, my grandmother made a gift of deed in favor of my cousins. Is it valid when I am claiming that no partition has taken place and the matter is subjudice?
5) Can I make a request to court refraining defendants from making further gift of deed and sale of land as a safety measure?
Regards
Manoj
Asked 8 years ago in Property Law
Religion: Hindu
Dear Esteemed Advocates,
Thanks for your response and expert advice. I have got couple of more queries to seek future of actions:
1) In the partition suit we have stated that after the death of my grandfather oral partition happened and thereafter my father and his elder brother took "Dakhil & Kabza" of their respective share. But there was no change in the land records as per the oral partition. Soon after the death of my father, my uncle refused to give share of my father, neither he shared any legal documents pertaining to the land with us. In our partition suit, we have mentioned that yes oral partition took place, but then property remained joint on papers and now we are asking for the partition to take place on papers as well. It has been established and proved in the court by defendants as well that oral partition has taken place and whole property was divided in 3 equal parts between both son and grandmother after the death of my grandfather. My question is have we taken a wrong stance while submitting that oral partition has happened but the same was not implemented on papers? Is this stance amounting to contradicting our own stance (that on one hand we are saying that oral partition has happened and on the other hand we are saying that property is still joint and hence no partition has happened) ? Is in it two things: Oral partition and its implementation.
2) My uncle acquired the patta land from Raja Ramngar on his name in 1948. He was a minor at that time. Is this valid? because as per section 10 of Indian contract act, minor is not competent to enter into any contract. so either the acquisition would become void ab initio or it will be considered that my grandfather has purchased that land on his name. In second scenario, will my father have equal share in that land?
3) How to prove that "patta land" is actually acquired by my grandfather since as per the records, it is not explicitly mentioned. Will it be assumed by court of law, that patta land is a acquired land only (and my grandfather only has executed in his elder son's name as per the custom and tradition). Can we explicitly ask defendant to prove how he has acquired patta land on his own being a minor?
4) In the pendency of partition suit, my grandmother has made a gift deed in favour of my cousins. But she did not mentioned the details of her own share while making gift deed. Is she allowed to do that? As per my understanding, gift deed can be made only by the owner of the property and that should be very clear. Is my understanding correct?
Look forward for your expert opinions to get pursue the long journey of getting justice...
Asked 8 years ago
