• Right on terrace

our father owned a 3 storeyed property in Delhi. As per his registered will,he has bequethed the ground floor in my brother,s name and the first and second floors in my name.We are occupying our respecive floors.Nothing is mentioned in the will about the terrace above the second floor and front and back setbacks(open spaces)on ground floor.Our common water tanks are existing on the terrace and one room also exists on terrace which is in my possession.Our sewer lines,water lines and meters are installed in back set back.Kindly give me your valuable advice about the ownership of the terrace and these open spaces.
Kind Regards
Asked 1 year ago in Property Law from Delhi, Delhi
1) terrace forms part of common area for benefit of all flat owners 

2) no construction can be carried on in terrace without consent of all co owners of the building 

3) n the case of Bihari Lal Jalan vs DDA  ( Civil Writ No. 2034 of 1992) the High Court of Delhi vide judgment dated 18th February, 2003 has held that the terrace is a common portion and does not belong to the top floor owner. The Court has held as under:

“ Common areas or common portions must remain common to all the allottees  and can not be grabbed by any particular allottee or group of allottees for their exclusive use. In so far as exclusive use of the top portions by the top floor owners is concerned, we feel that the top terrace is a common portion as described in the DDA Regulations of 1968 and the use of the same is not exclusive to the top flat owner. “
Ajay Sethi
Advocate, Mumbai
23142 Answers
1215 Consultations
5.0 on 5.0
1) probate is not mandatory in New delhi 

2) you have to make an application for mutation to MCD and enclose copy of your father will and death certificate . 

3) you will also have to execute an Indemnity bond containing an undertaking that you  shall indemnify the Corporation in the event of dispute arising from the mutation made upon his application

4) an affidavit on stamp paper has to be executed mentioning demise of your father and name of legal heirs 

5) notice will be issued to all legal heirs including your sisters 

6) if no objection is received from other legal heirs property would be mutated in name of the sons .
Ajay Sethi
Advocate, Mumbai
23142 Answers
1215 Consultations
5.0 on 5.0
1. Terrace is a part of the common area where on no construction can take place except with the consent of all the co-owners.

2. No co-owner can assert a preferential right over the terrace. 

3. You cannot assert ownership to the room on the terrace which is in your possession.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
1.  Mutation is the recording of a transfer of title of a property from one person to another. The mutation is for the purpose of payment of property tax by the person in whose name the property has been mutated.

2. The procedure and the fees payable varies from State to State. However, generally, the procedure includes an application along with non-judicial stamp of relevant value, containing some information. It is to be submitted to the tahsildar of the area. 

3. The name of the area in which the property is situated should be set forth. The name, parentage, and residential address of the person from whom the right has been acquired and the manner in which the right has been acquired should also be furnished. A copy of the document on the basis of which the mutation is sought - sale feed, Will etc should be attached. Death certificate Copy or Will or Succession Certificate, Indemnity bond on stamp paper of requisite value and affidavit on stamp paper, are to be submitted. 

4. The Patwari submits his report in the prescribed format. The statement of parties is recorded. The contents of the documents are matched with the recorded statements. If no objection against the proposed mutation is received, the process is completed. In case any objection is received against the mutation, the matter is referred to the Revenue Assistant of the area. 

5. Death certificate of the original assessee and affidavit with no objection certificate from the other legal heirs of the deceased or their successors in interest Indemnity bond containing an undertaking of the executant that he indemnifies the Corporation in the event of dispute arising from the mutation made upon his application is also to be submitted.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
Hi, terrace floor is common to all  and secondly even though your father has six children and from your narration it is not clear that whether the property is an ancestral property or self acquired property and if the property is a self acquired property of your father then he can given to any body though your father has given property to only two sons and other will have no right to claim the property.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
ownership on the terrace shall be decided by the doctrine of cypress and by this rule no single person can get possession over it because it has been used as common sharing. so it is difficult for you to get possession because after possession same question will be arise regarding terrace above third floor.
Shivendra Pratap Singh
Advocate, Lucknow
2728 Answers
41 Consultations
4.9 on 5.0
1. The terrace and the place where the tank is situated are common areas to be owned and used by all the flat owners,

2. You can not construct another floor on the terrace without the consent of other flat owners,
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1. Probate for a will bequeathing property of Delhi is not requierd to be probated like other places,

2. File an application attching the copy of the will and the death certificate of your father,

3. Engage a local lawyer who will get your property mutated against fees after submitting the required documents.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0

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