• Will I get a stay order for my halted construction

My grandfather and his four sons for which family partition took place in 1965 between them. Since then the 3 brothers are living separately with their childern in there allotted properties and businesses until now.

Out of 3 brothers 2 brothers died in 2011 and 2012. Only first brother is alive and 80+ years old.
 
The present suit schedule house was allotted to My Grandfather share during partition in 1965 and since then my grandfather was in possession and enjoyment of the said house and after the death of My grandfather on [deleted] the suit schedule hose was fallen to the share of My grandmother. My father has not written any will or a document on the suit property.

During partition in 1965 my father was minor and his age was less the 3 years (DOB [deleted]) and was living with his mother untill now with his wife and son (myself 37 years old) in the suit house. And my grandmother was taken care by my father and mother after the death of my grandfather until 2000 and she died in 2000.

My grand mother executed a Gift Deed to me on the suit schedule property in the year 2000. None of the my father brothers or sons not lived in the suit property neither taken care of my grand mother during her life time, even during her 4 year of bed ridden all medical and needs were taken care by my father and mother. Even my grand mother given a statement in the court that all his needs were maintained by my younger son (my dad) hence i performed the gift deed to my grand son my self.

Present scenario:
As the building is very old more then 100 years and i got the permission from nagarapanchayat for constuction of the house. Now my brothers and My dad only brother send a Injunction order from senior civil court for temporarly not to change the topography of the suit property until the current case is disposed.

How should i proceed for my consturction?

1) Can i get a stay or remove injunction order from high court?
2) Will i win the case which is pending to be disposed?

Kindly do the needfull.
Asked 4 years ago in Property Law
Religion: Hindu

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19 Answers

1. Yes the stay order need to be challanged in high court as it is interim order you need to file a civil writ for vacating the stay and restoring status quo. The high court shall decide the case based on merits and documents available.

Since the only thing is if your grandfather died without will then the property shall be divided in all legal heirs not only on grandmother so you need to claim it was oral will bt grandfather to give property to grandmother and then she executed will in your fathers favour.

2) that can be decide on just a view that how the property from grandfather was transferred to only grand mother if there was no will oral or written what is your stand in court???

If that transfer is valid than gift is valid and you will win the case as other relevant factors like possession statements are in your favor.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) on demise of grandfather your grandmother , your father , uncle would have equal share in property

2) your grandmother could have executed gift deed for only her one third share in property

3) court would not vacate the stay pending hearing and final disposal the suit

4) if your father , uncle had executed relinquishment or gift deed in fanoyr of grand mother then only woukd she be absolute owner of property

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Since the property was partitioned it won't have a nature of ancestral property also the ancestral property is from 4 generation also on partition the family is separated but still they have right on father property in case he doesnot make a will or gift in life.

Dying intestate without will , gift rules of succession apply and other legal heirs too have claim in that .

The real question here is what was your father share when he was minor in the property at time of partition??

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Yes you need to approach the appellate court for vacation of stay and further you need to contest the case or go for judicial partition. Till you get the clear title you will not be able to sell the same

Prashant Nayak
Advocate, Mumbai
27232 Answers
88 Consultations

4.4 on 5.0

It is not ancestral property

2) property which has remained undivided for four generations is ancestral property

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Yes now the issue a matter of trail, let the same be decided by the court on settled position of law under Hindu succession Act

Prashant Nayak
Advocate, Mumbai
27232 Answers
88 Consultations

4.4 on 5.0

Yes i agree to the position of law under 29-B explanation II to as your uncle has separated from coparcenary property before 1965, but the issue according to me is see when the coparcenary share is divided it become personal share of your grandfather and on his death dying intestate the share shall devolve in the class I heirs not as coparcenary share but as his personal share which he could have transferred before his death or by will.

She partition took place the coparcenary property was divided all heirs got their personal share including grand father now own his death rule of intestate succession applies because property is no more a coparcenray property as essential of coparcenary is joint sharing and no one has complete right over it, it is undivided.

But in case your grand father continuous coparcanery with your father and there share is undivided and changing in that case your claim is right

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Cleint,

Once partition has been effected, its has become personal property.

What partition has been effected ????

If property was opened in your father on partition, its his personal property, non has any claim int he property.

Since the property is 100 years old, Valid Gift Deed, Long possession, balance of convenience, unavoidable renovation/maintenance is paramount.

Stay can not be sustain if challenged.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Dear Sir,

You may make use of the following of recent judgment of Supreme Court and get vacate stay order granted by Trial Court.

Breaking: Stay In Civil/Criminal Proceedings Not To Be Granted Beyond Six Months; Further Extension Only By Speaking Order: SC [Read Judgment]...

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1375-1376 OF 2013 ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. & ANR. …Appellants VERSUS CENTRAL BURUEAU OF INVESTIVATION …Respondent

The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced, the Bench said.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. You have not provided the vital information in the matter. Is there any suit pending to be disposed off? If yes then who had filed it and for what? Is it a partition suit filed by your Uncle & Cousins? If yes then they have the right to pray for a stay order restraining you in changing the nature and style of the suit property( for which the partition suit has been filed by them), till the disposal of the suit.

2. You have mentioned in your post " after the death of My grandfather on [deleted] the suit schedule hose was fallen to the share of My grandmother". Through which legal document the said scheduled property had fallen to the share of your grandmother without a will executed by your grandfather to that effect? If there was no legal document registered for conveying the title of the said share of the property of your grandfather, all his legal heirs including your grandmother, father, Uncle and legal heirs of other demised uncles will have equal share on the said portion of the property of your grandfather.You shall have to establish that the title of the said grandfather's share of the property was legally conveyed to your grandmother. Otherwise her gift deed transferring the entire share of your grandfather in your favour will be treated as illegal, hence invalid.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1.No, it is not an ancestral property. Even if your Uncles separated from your grandfather, they are the legal,heirs of your grandfather's said share property as per Indian Succession Act. There is nothing called Joint Family Act

2. All the legal heirs of your grandfather are entitled to the share of his properties irrespective of the fact that they did not stay with your grandfather.

3. Since your grandmother was in possession of the said property for more than 12 years, she could have claimed adverse possession of it. You can now claim her adverse possession of the said property which she has gifted to you to make the gift deed valid.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. It is not a 'coparcenary property' of your grandfather after the partition.

2. It is his individual property. on which all his legal heirs will have equal right after his demise intestate.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

How should i proceed for my consturction?

1) Can i get a stay or remove injunction order from high court?

You may file a petition under IOrder XXIX Rule 4 CPC; Order for injunction may be discharged, varied or set aside.- Any Order for an injunction may be discharged, or varied, or set aside by the court, on application made thereto by any party dissatisfied with such order:

Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular arid the injunction was granted without giving notice to the opposite party, the court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

2) Will i win the case which is pending to be disposed?

From the contents it appears that your grandmother was not the sole successor to succeed your grandfather's share of that house property, hence the gift deed executed by her in your favor may not be fully executable, she can transfer the property by executing a registered gift only to the extent of her share in that property.

She cannot automatically become the sole owner of the property after the intestate death of her husband, her children also have an equal share out of their father's share in the property, so you may look into the case from that angle also and try to defend your interests in the property accordingly.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Can this be a Ancestral property? As my fathers brothers separated in 1965 and not lived together until 1975 and this house was a allotted to share of my grand father during partition. how do they come under the Joint family act as they were partitioned and separated and my father was still minor not lived as a joint family neither me or my father.

This is neither ancestral property nor a joint family property.

This shall be your grandfather's share and his own absolute property.

Upon his intestate death, your grandfather's this share of property devolves equally on all his legal heirs namely, his wife and children (whether minor or major);

Thus it will not make even your grandmother a owner of entire property, she is entitled to to a proportionate share in the property along with other shareholders equally at par with others.

Therefore she can transfer only her legitimate share in the property to your name by a registered gift deed and not the entire property.

My grand mother was a possession of the house since 1975 to 2000 until she transferred the gift deed and her name was captured in Municipality records.

Just having possression will not entitle her to own the entire property.

The legal heirs/successors in interest can claim their legitimate share in the property anytime by a partition suit, the same is not barred by limitation.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

To assist the honorable court the counsel for the respondents (Myself and my father) have furnished act (Hindu law of succession act 39 of 2005) with effect from [deleted] requesting to study the provisions of sec 6 and sec 29-b (explanation -II) of the said act. The plaintiff (My uncle) had separated before [deleted] from the co-parcenary family and property of my grand father which date is much prior to the date of death of my grandfather who died on [deleted], hence he is not entitled to claim interest in the property of my grandfather deceased as per section 29-b (explanation -II) of Hindu law of succession act 39 of 2005.

The provisions of law what you are trying to invoke here is incorrect and not maintainable.

The Hindu Succession (Amendment) Act, 2005 (39 of 2005) was enacted to remove gender discriminatory provisions in the Hindu Succession Act, 1956. ... The daughter shall now have the same rights in the coparcenary property (ancestral property of the Hindu undivided family) as a son.

The provisions of Section 29B in The Hindu Succession Act, 1956 are :

For the purposes of this section the interest of a female Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death irrespective of whether she was entitled to claim partition or not. Explanation II .—Nothing contained in the proviso this section shall be construed as enabling a person who before the death of the deceased, had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein.

Therefore in the name of assisting court you have given wrong provisions of law which are not applicable to your situation.

The situation seems not to be fully in your favor hence you may try for an amicable solution by a compromise with the agitating parties.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

SC judgment would be applicable to your case

Trial court has to extend stay order after lapse of 6 months

Reasons have to be mentioned fir giving stay

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

No, it won't apply on your case the order of the Apex court Is for stay on suit not on stay given in a suit.

For example if you get stay on the suit from high court then in case that stay lapses order given under order 39 doesn't lapses after 6 month.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Before starting the construction, wait for few days, if opposite party request the court to extend stay order by reasoned order, if not than you are free to construct and to keep your conduct before the court, at least inform the court about lapse of six month to avoid any contempt of court order.

On what grounds court grated stay on your father`s personal property, what stake opposite party have in the property.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. If it is a temporary injunction issued by the Court, then it will be up to the next date of hearing of the injunction application till the injunction is made permanent.

2. In your case it is not a case of "stay of proceeding in a pending trial " but a stay order restraining you in changing the topography of the suit property until the disposal of the suit.

3. If it is a temporary order passed by the Court, then contest its renewal application on the next date of hearing and if it is a permanent injunction, then challenge the order in the Appellate Court.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

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