• Construction of second floor

we are staying in a big house with three independent floors which my father in law has divided to three brothers when he was alive and we all are staying here since last 30 years. After my father in law died, three brothers have done mutation in their names and also Registered mutual consent among brothers  in rotary. I now want to construct the second floor on roof whose rights was given to me by my father in law. i want to ask the procedure about it? I am being advised to get NOC from legal heirs and then only map can be passed.One of my brother in law has passed and another brother in law is now troubling and asking for more share after 15 years of settlement. Kindly advice.
Asked 2 years ago in Property Law from New Delhi, Delhi
1) it would have been advisable to register the partition deed for division of house by metes and bounds . unless it is duly stamped and registered partition deed  is in admissible in evidence 

2)to carry out additional construction you need consent of other legal heirs . 

3) if BIL has expired his legal heirs ie his wife and children can give consent . 

4) if second BIL is asking for additional money pay him to get his consent . 

5) before proceedings further get your house surveyed by structural engineer whether house can  bear the load of additional floor ? 

6) get plans sanctioned by muncipal corporation and then only carry on additional construction
Ajay Sethi
Advocate, Mumbai
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Hello,

1) It is important to know how the right was given to you by your father in law for the first floor upon which you are intending to construct. If it was given by a registered deed duly stamped it would suffice .

2) You would need the NOC from the legal heirs especially in the absence of a registered Deed of Family settlement or partition by which your father in law divided the property. A Notarized Document without being duly stamped and registered lacks legal validity.

3) The brother in law is asking for additional money as he is seeing an opportunity. The only way you can silence him is to buy him out as , if he goes to court it will put your prospect of building under threat as an injunction will be the first thing he will seek among other reliefs.

4) Do get the NOC from the legal heirs and a sanction from the local body government such as the Municipal Corporation to carry out the additional construction.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
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1. refer to your partition deed. if you are given right to make further constructions on the roof then nobody can restrain you.
2. If another brother poses problem in this then you can apply for injunction sp no such construction work can be stopped.
3. I wonder why NOC is required from another brother as the building plan is sanctioned on the basis of partition deed only.
4. If after getting injunction the Municipality doe snot sanction building plan then file writ petition .
Devajyoti Barman
Advocate, Kolkata
5231 Answers
54 Consultations
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1) if you want to carry on additional construction on terrace you would need consent of other owners . please note that terrace forms part of common area and every flat owner has undivided interest in it irrespective of agreement to contrary 

2)Delhi Apartment Ownership Act, 1986  introduces
into the title/rights to immovable property, the concept of common areasdefined in Section 2(j) thereof inter alia as roofs, yards, gardens, parking spaces and by Section 4 thereof confers on every apartment owner anundivided interest in the said common areas; Section 24 makes the
provisions of the said Act applicable to all apartments, notwithstanding anything contained in any other law or in any contract.
Ajay Sethi
Advocate, Mumbai
23302 Answers
1220 Consultations
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1. How did your father divide the property among three of you? Was a partition deed drawn up?

2. If the partition deed has been executed in accordance with the law then you are at liberty to carry out construction on the portion of property which was allotted to you on division. The nature of rights to be enjoyed by you flow out of the partition deed. 

3. If the partition deed is not drawn up or is not registered then you require NOC from other legal heirs. A mere notarized deed does not create any rights which can be enforced in the court. 

4. Your brother is demanding his pound of flesh as he must have been advised that your rights are not adequately safeguarded by the document whereby and whereunder the division took place. You may buy his share or convince him to give you NOC. If you proceed to construct without seeking a NOC he can obtain a stay order from the court in no time.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1. How has your father in law has given the roof right to you,

2. Waw the partition deed registered was was notarised only,

3. If it was not registered, it is having no legal value as regards the partition is considered,

4. Get the said partition deed egistered,

5. In absence of it, you shall have to tale NOC from the legal heirs to make any construction on the said property.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
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