• Possession of inherent property

We are 4 siblings( 2 sisters, 2 brothers). As per RTC we have joint possession of land (3 acre and 13 gunta). In 12/2 of rtc names of same siblings is mentioned and in 12/3 of rtc it is mentioned as cultivation is made by all the above individuals.  The same land is being cultivated by my elder brother for the last 25 years. Out of 4 siblings we three are ready to get separate possession. But my elder brother is not ready. How to proceed to get the separate possession of our share? 
note- does limitation act apply here?
Asked 1 year ago in Property Law from Raichur, Karnataka
Religion: Hindu

File a suit for partition so that this property may be divided by metes and bounds into 4 equal parts, one part to each one of you; and thereupon take possession over your respective portions.

Limitation Act will not hinder this.

Contact a local civil lawyer.

Vibhanshu Srivastava
Advocate, New Delhi
8734 Answers
144 Consultations

5.0 on 5.0

The partition suit can be filed in the court the court shall devide the property the partition can be done anytime in case of inherited property.

If the brother agrees than you can also register a partition deed otherwise the suit for partition has to be filed in revenue court local jurisdiction.

Shubham Jhajharia
Advocate, Ahmedabad
20971 Answers
81 Consultations

5.0 on 5.0

Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them

2) file suit for partition for division of property by metes and bounds

Ajay Sethi
Advocate, Mumbai
69139 Answers
4158 Consultations

5.0 on 5.0

Suit may take 10 years to be disposed of

Ajay Sethi
Advocate, Mumbai
69139 Answers
4158 Consultations

5.0 on 5.0

Partion suit can be settled in 2-3years based on the officer and objection by your 4th brother

Shubham Jhajharia
Advocate, Ahmedabad
20971 Answers
81 Consultations

5.0 on 5.0

You need to file a civil suit for portion of ancestral property and on the order of the court the partition will be done.

The case definitely will need some time but as he have nothing to prove his title the court will order partition.

The case may take 3 to 5 years.

Vimlesh Prasad Mishra
Advocate, Lucknow
5713 Answers
19 Consultations

4.9 on 5.0

3 years...!

Ramakant Singh
Advocate, Delhi
36 Answers
3 Consultations

4.0 on 5.0

But my elder brother is not ready. How to proceed to get the separate possession of our share?

note- does limitation act apply here?

You will have to file a suit for partition

the limitation per se will not apply

Anilesh Tewari
Advocate, New Delhi
17278 Answers
267 Consultations

5.0 on 5.0

the same will take 5-7 years to get decided till then you may move an application to the effect that no third parties right are created till disposal of the case

Anilesh Tewari
Advocate, New Delhi
17278 Answers
267 Consultations

5.0 on 5.0

3-5 years, it may take, if your brother who's in possession over the entire property contests this case.

Vibhanshu Srivastava
Advocate, New Delhi
8734 Answers
144 Consultations

5.0 on 5.0

Dear Sir,

You have to file a suit for partition. The Court is maximum of Rs.200/- But you have to bear the advocate fee. If you engage low grade advocate then you may not get expected resulted and also you have wait for years together. The proforma plaint is is follows.

=======================================================================================

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE

AND JMFC AT MAGADI, RAMANAGARA DISTRICT

O.S. No. /2016

BETWEEN:

Smt. Venkatalakshmamma,

W/o Peddaiah,

D/o late Chakra Bhovi,

Aged about 56 years,

R/at Mallur Village,

Solur Hobli,

Magadi Taluk. … Plaintiff

AND

1. Sri. Venkatashamaiah,

S/o late Chakrabhovi,

Age Major.

2. Sri. Venkataramaiah,

S/o late Chakrabhovi,

Age Major.

3. Sri. Chikkaramaiah,

S/o late Chakrabhovi,

Age Major.

6. Sri. M.C. Chandraiah,

S/o late Chakrabhovi,

Age Major.

5. Smt. Doddamma,

S/o late Narayana,

Age Major.

Respondent No. 1 to 5

R/at Mallur Village,

Solur Hobli,

Magadi Taluk. … Defendants

PLAINT UNDER ORDER 7 RULE 1 READ WITH SECTION 26 OF CIVIL PROCEDURE CODE 1908

The above named plaintiff most humbly begs to submits as follows:

1. That the addresses of the parties for the purpose of service of summons, notices etc., is correctly set out in the cause title and also plaintiffs are care of their counsel xxxxxxxxxxxxxxxxxxxxxxxxxxx.

2. The plaintiff submits that, the suit schedule lands bearing Sy. No. 123 measuring 1 acre 27 guntas, Sy. No. 18 measuring 3 acres 20 guntas and Sy. No. 6 measuring 2 acres 15 guntas were belonging to her father Chakra Bhovi. Sy. No. 123 measuring 1 acre 27 guntas and Sy. No. 6 measuring 2 acres 15 guntas were granted to late Chakra Bhovi. Whereas Sy. No. 18 measuring 3 acres 20 guntas was a tenanted land and tenancy was conferred in the name of late Chakra Bhovi by Land Tribunal in case No. LRF (S) 81/1981-82 dated 17.12.1981.

3. The plaintiff further submits that, the late Chakrabhovi left behind 5 sons and one daughter i.e., plaintiff. Defendant No. 1 to 5 are sons of late Chakrabhovi and plaintiff is daughter of later Chakrabhovi. The defendant No. 1 to 5 after the death of the father of plaintiff created an unregistered Will dated 28.04.1992 without the knowledge of plaintiff and the signature of plaintiff was not taken on the said Will as a consenting witness and it was never executed by father of plaintiff. It is a concocted and created document being an unregistered Will, no party much less defendant No. 1 to 5 cannot rely upon such document.

4. The plaintiff further submits that, apart from above lands the father of plaintiff left behind two vacant sites measuring 10 X 50 feet and 44 X 55 feet at Mallur Village. In one of the site house was constructed and defendant No. 1 to 5 are residing. The plaintiff has produced family genealogy which clearly discloses her status in the joint family. The defendants falsely represented before Tahasildar and got mutated the landed properties in their favour and without the knowledge of plaintiff. The plaintiff approached Hon’ble Assistant Commissioner, Ramanagara for setting aside the said mutation entries in the names of only the sons of late Chakrabhovi. The plaintiff being the daughter of late Chakrabhovi is entitle for 1/6th share in all the plaint schedule properties including landed properties. Thus the action of defendants is adverse to the interest of plaintiff. The plaintiff approached the defendant No. 1 to 5 claiming her share but defendants denied her share and stated that, late Chakrabhovi executed Will in their favour as such the plaintiff has no share in the Plaint Schedule Properties. Actually the plaintiff approached defendant No. 1 to 5 claiming her share in the first week of August 2016. All the records previously standing in the name of late Chakrabhovi the father of plaintiff. The plaintiff producing relevant documents and also family genealogy. This plaint may be read along with recitals of above documents as part of these pleadings. The father of plaintiff late Chakrabhovi died on 14.07.2003 and Death Certificate is produced herewith. During the lifetime of late Chakrabhovi and even after his death defendant No. 1 to 5 and plaintiff enjoying all the properties jointly. Even after death of late Chakrabhovi the plaintiff and defendant No. 1 to 5 enjoying the properties jointly. The husband of defendant No. 5 died. The orders passed by various authorities clearly goes to show that, the said properties belongs to joint family of plaintiff and defendant No. 1 to 5. These defendants fraudulently created the Will on 28.04.1992. It is unregistered document and does not create any right, title or interest over the any immovable properties in favour of defendant No. 1 to 5. The revenue authorities ought not to have acted upon such understood Will. No notice was served upon plaintiff at the time of passing orders by revenue authorities on the basis of the said Will. The plaintiff filed separate proceedings before learned Assistant Commissioner, Ramanagara against orders passed by Tahasildar in M.R. No. H62/2014-15 dated 29.06.2015. The RTC extracts discloses the name of late Chakrabhovi who is no other than father of plaintiff.

CAUSE OF ACTION:

5. The Plaintiff further submits that, the cause of action arise in her favour of in the first week of August 2016 when defendant No. 1 to 5 denied her share. Immediately she approached her advocates and filed revenue appeal before Assistant Commissioner, Ramanagara and also asked her advocates to file this original suit seeking 1/6th share in all the plaint schedule properties.

LIMITATION

6. The present suit is within limitation.

COURT FEE

7. The plaintiff submits that, She has paid required court fees according to annexed valuation slip.

TERRITORIAL AND PECUNIARY JURISDICTION

8. That suit properties are situated within the jurisdiction of this Hon’ble Court and this Hon’ble Court having both pecuniary and territorial jurisdiction to entertain this suit. For the purpose of pecuniary jurisdiction the plaint schedule properties are valid at Rs. 2,00,000/- in respect of landed properties and valued at Rs. 1,00,000/- in respect of site and house property.

WHEREFORE, the plaintiff prays that this Hon’ble Court may be pleased to pass an judgment and decree in favour of the plaintiff and against the defendants as follows.

a) Directing defendant No. 1 to 5 to given 1/6th share to the plaintiff in all the plaint schedule properties by dividing the same by metes and bounds.

b) Any other relief for which the plaintiff is entitle may kindly be given, in the interest of justice and equity.

SCHEDULE-A

Item No. 1: Land bearing Sy. No. 18 measuring 3 acres 20 guntas.

Item No. 2: Land bearing Sy. No. 123 measuring 1 acre 27 guntas.

Item No. 3: Land bearing Sy. No. 6 measuring 2 acres 15 guntas, all above lands are situated at Mallur Village, Solur Hobli, Magadi Taluk, Ramanagara District.

SCHEDULE-B

Item No. 1: Vacant site measuring 10 x 50 feet.

Item No. 2: Property measuring 44 x 55 feet wherein house property is situated, both properties are situated at Mallur Village, Solur Hobli, Magadi Taluk, Ramanagara District.

VERIFICATION

I, Smt. Venkatalakshmamma, W/o Peddaiah, D/o late Chakra Bhovi, Aged about 56 years, R/at Mallur Village, Solur Hobli, Magadi Taluk., do hereby declare on oath that contents of plaint para no.1 to all are a true and correct to the best of my knowledge and belief.

Through

Plaintiff

Advocate

Place:

Dated:

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE

AND JMFC AT MAGADI, RAMANAGARA DISTRICT

O.S. No. /2016

BETWEEN:

Smt. Venkatalakshmamma, … Plaintiff

AND

Sri. Venkatashamaiah and others … Defendants

LIST OF DOCUMENTS FILED BY PLAINTIFF

1. Xerox copy of Will dated 28.04.1992.

2. Copy of Copy of Family Genealogy.

3. Copy of Grant Orders.

4. Copy of Orders passed by Land Tribunal.

5. Copy of Mutation Order.

6. Copies of RTC extracts.

Through

Plaintiff.

Advocate

Place:

Dated:

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE

AND JMFC AT MAGADI, RAMANAGARA DISTRICT

O.S. No. /2016

BETWEEN:

Smt. Venkatalakshmamma, … Plaintiff

AND

Sri. Venkatashamaiah and others … Defendants

APPLICATION UNDER ORDER 39 RULE 1 and 2 OF CIVIL PROCEDURE CODE SEEKING EX PARTE TEMPORARY INJUNCTION RESTRAINING DEFENDANTS FROM ALIENATING PLAINT SCHEUDLE PROPERTIES

May it please your Honour,

For the reasons stated in the accompanying affidavit the Hon’ble Court may pleased to restrain defendant No. 1 to 5 from alienating, creating or mortgaging any of the plaint schedule properties, till disposal of this suit, in the interest of equity and justice.

Advocate for Plaintiff. Plaintiff.

Place:

Date:

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE

AND JMFC AT MAGADI, RAMANAGARA DISTRICT

O.S. No. /2016

BETWEEN:

Smt. Venkatalakshmamma, … Plaintiff

AND

Sri. Venkatashamaiah and others … Defendants

AFFIDAVIT

I, Smt. Venkatalakshmamma, W/o Peddaiah, D/o late Chakra Bhovi, Aged about 56 years, R/at Mallur Village, Solur Hobli, Magadi Taluk., do hereby solemnly state as follows:

1. That I am the plaintiff in this suit and I know the facts of this case.

2. That I the deponent state on oath that, the suit schedule lands bearing Sy. No. 123 measuring 1 acre 27 guntas, Sy. No. 18 measuring 3 acres 20 guntas and Sy. No. 6 measuring 2 acres 15 guntas were belonging to her father Chakra Bhovi. Sy. No. 123 measuring 1 acre 27 guntas and Sy. No. 6 measuring 2 acres 15 guntas were granted to late Chakra Bhovi. Whereas Sy. No. 18 measuring 3 acres 20 guntas was a tenanted land and tenancy was conferred in the name of late Chakra Bhovi by Land Tribunal in case No. LRF (S) 81/1981-82 dated 17.12.1981.

3. The deponent further submits that, the late Chakrabhovi left behind 5 sons and one daughter i.e., deponent Defendant No. 1 to 5 are sons of late Chakrabhovi and plaintiff is daughter of later Chakrabhovi. The defendant No. 1 to 5 after the death of the father of deponent created an unregistered Will dated 28.04.1992 without the knowledge of deponent and the signature of deponent was not taken on the said Will as a consenting witness and it was never executed by father of deponent. It is a concocted and created document being an unregistered Will, no party much less defendant No. 1 to 5 cannot rely upon such document.

4. The deponent further submits that, apart from above lands the father of deponent left behind two vacant sites measuring 10 X 50 feet and 44 X 55 feet at Mallur Village. In one of the site house was constructed and defendant No. 1 to 5 are residing. The deponent has produced family genealogy which clearly discloses her status in the joint family. The defendants falsely represented before Tahasildar and got mutated the landed properties in their favour and without the knowledge of deponent. The deponent approached Hon’ble Assistant Commissioner, Ramanagara for setting aside the said mutation entries in the names of only the sons of late Chakrabhovi. The deponent being the daughter of late Chakrabhovi is entitle for 1/6th share in all the plaint schedule properties including landed properties. Thus the action of defendants is adverse to the interest of deponent. The deponent approached the defendant No. 1 to 5 claiming her share but defendants denied her share and stated that, late Chakrabhovi executed Will in their favour as such the deponent has no share in the Plaint Schedule Properties. Actually the deponent approached defendant No. 1 to 5 claiming her share in the first week of August 2016. All the records previously standing in the name of late Chakrabhovi the father of deponent. The deponent producing relevant documents and also family genealogy. This plaint may be read along with recitals of above documents as part of these pleadings. The father of deponent late Chakrabhovi died on 14.07.2003 and Death Certificate is produced herewith. During the lifetime of late Chakrabhovi and even after his death defendant No. 1 to 5 and deponent enjoying all the properties jointly. Even after death of late Chakrabhovi the plaintiff and defendant No. 1 to 5 enjoying the properties jointly. The husband of defendant No. 5 died. The orders passed by various authorities clearly goes to show that, the said properties belongs to joint family of deponent and defendant No. 1 to 5. These defendants fraudulently created the Will on 28.04.1992. It is unregistered document and does not create any right, title or interest over the any immovable properties in favour of defendant No. 1 to 5. The revenue authorities ought not to have acted upon such understood Will. No notice was served upon deponent at the time of passing orders by revenue authorities on the basis of the said Will. The deponent filed separate proceedings before learned Assistant Commissioner, Ramanagara against orders passed by Tahasildar in M.R. No. H62/2014-15 dated 29.06.2015. The RTC extracts discloses the name of late Chakrabhovi who is no other than father of deponent.

5. The deponent humbly submits that, as the records now stands in the name of defendants as such they are finding out prospective purchasers and also trying to take loans by mortgaging the landed and other properties. If defendants are successful in alienating, creating or dealing with plaint schedule properties in any manner then the plaintiff has to run from pillar to post as she will be involved in multiplicity of litigations. Prima-facie the records goes to show that, she is having 1/6th share in all the plaint schedule properties in the capacity of daughter of original owner late Chakrabhovi. The balance of convenience also lies in favour of deponent. If ex parte temporary injunction is not granted in favour of plaintiff the defendant would be put to irreparable loss which cannot be compensated in terms of money.

Hence this affidavit.

Identified by

Deponent.

Advocate.

Place:

Date:

Kishan Dutt Kalaskar
Advocate, Bangalore
4711 Answers
134 Consultations

5.0 on 5.0

You need to file partition suit in court for the same. Limitation will be recurring in nature for the same.

Prashant Nayak
Advocate, Mumbai
14605 Answers
25 Consultations

4.6 on 5.0

Depends upon the number of witness and documents to be exhibit.

But, take around two years minimum.

Sanjay Baniwal
Advocate, South Delhi
4931 Answers
11 Consultations

5.0 on 5.0

If one of the share holders is not ready or willing to partition the property then you have no choice than to file a suit for partition and separate possession of your legitimate share in the jointly held property.

You can discuss with a local lawyer and proceed on his advice on all such further issues.

T Kalaiselvan
Advocate, Vellore
58991 Answers
749 Consultations

5.0 on 5.0

The partition suit may run for years but it is inevitable and unavoidable.

It should not deter your determination.

T Kalaiselvan
Advocate, Vellore
58991 Answers
749 Consultations

5.0 on 5.0

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