• Partition of property

sir/my father bequeathed a regd will of self acquired  house property to me(4th son)and my brother (5th and last son) divided shares equally 2 parts with sole rights in 1982.he imposed  us in will unconditionally to give some money to the remained 3 sons and two daughters  within 3 years without interest.later he died.i request my brother for execution of will.he is in possession of house  and greedy to enjoy the entire property. the other brothers are collided with him and did not allow me to fulfill my father`s consideration.my lawyer filed partition suit in 1992 against my co-sharer and contended that time barred for other brothers to claim money as stated in will.in 2002 the partition suit dismissed on the point that even if the will is upheld there is non-joinder of necessary parties. now the appeal is pending in high court.recently 3 months back i have executed regd gift deed to my daughter to perform marriage.my question is
1)how to evict my co-sharer from my portion of house
2)in the will 1982 my father imposed each of us to distribute  others rs22,500/ at present is it court decides to give same amount with interest up to date?or really  deemed to be time barred.
3)is it correct to transfer my share to my daughter ?
4)how to protect my or my daughter`s right  at present.
5)my daughter is doctor and planning to built hospital in that place.i am in confusion to take necessary steps.
6)i would like to pay certain amounts to others but they want to share them 1/2 of my house property.my co-sharer encouraging them like that.thank you.
Asked 1 year ago in Property Law from vizag, Andhra Pradesh
1. Until the suit for partition is finally decided you can not file suit for eviction. In the partition suit the rights of the parties , if any, in the suit property will be decided and before that his interest in the suit property is not decided.

2. The claim for money out of bequest through Will is not time barred. it is an obligation not arising out of any agreement but out of succession plan.

3. Yes, you can transfer your vested share in the suit property to anyone you choose.

4. She will have to pursue the appeal in stead of you by making herself substituted in it.

5. Until the partition suit is deiced nothing can be constructed on the suit property.

6. Let the court decide your share when your brothers are so unwilling,
Devajyoti Barman
Advocate, Kolkata
5237 Answers
54 Consultations
4.9 on 5.0
1) if suit is bad for non joinder of necessary parties your appeal would fail .

2) claim of your brother /sisters is not barred by limitation 


3) with draw appeal andd file fresh suit for partition 

4) dont create any third party rights now 

5) your daughter cannot construct hospital on said land 

6) it is better to arrive at an amicable settlement with your siblings 

6) suit would take years to be disposed of .
Ajay Sethi
Advocate, Mumbai
23318 Answers
1220 Consultations
5.0 on 5.0
1. Does the gift deed executed by you in favour of your daughter pertain to your share in the property which has been given to you by your father in his will? If the answer to this question is yes then be informed that the gift deed is illegal and can be struck down as such by the court if challenged by your sisters. The will made by your father was contingent on you giving the specified amount of money to your sisters. Violation of this condition disentitles you to claim your share. Consequently the share could not have been gifted by you. 

2. As long as the appeal is pending you cannot evict the co-sharer.

3. Your daughter has no right in the property at present. Consequently she cannot construct a hospital thereupon. 

4. Wait till the decision of the HC before you create any third party rights.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1)how to evict my co-sharer from my portion of house
Ans:-File eviction suit against him.
2)in the will 1982 my father imposed each of us to distribute  others rs22,500/ at present is it court decides to give same amount with interest up to date?or really  deemed to be time barred.
Ans:-You should have initiated probate of Will proceedings instead of partition suit.    
3)is it correct to transfer my share to my daughter ?
Ans:It was okay after grant of probate by court. 
4)how to protect my or my daughter`s right  at present.
Ans:You should approach concerned civil court for probate of the Will. 
5)my daughter is doctor and planning to built hospital in that place.i am in confusion to take necessary steps.
Ans:-Enough is enough.Act swiftly.  
6)i would like to pay certain amounts to others but they want to share them 1/2 of my house property.my co-sharer encouraging them like that.thank you.
Ans:- It might have avoided if you would have filed probate of Will case earlier in lieu of partition suit.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0
1.  You can file Partition suit for your portion of the house.
2.  If the WILL is upheld then the Court may ask both of you to pay Rs.22,500/ + admissible bank rate of interest till payment is made to your other 3 brothers & 2 sisters.
3.  Since the matter is sub-judice, it is incorrect to transfer your share in the property to your daughter and as you have stated that you have executed Gift Deed in your daughter's favour and I wonder how could the Sub-Registrar register a disputed property.
4.  Any way if the WILL is not upheld also, you will get equal share alongwith your mother(if she is alive) and other siblings, thereby your right is protected though not up to your expectation and satisfaction.
5. Let your Dr.Daughter wait till the matter is resolved.
6. Before taking a decision, you have to wait for the outcome of the case.

In your letter some questions are unanswered, as detailed below:-
1. When did your father die.
2. Whether the WILL is authenticated by two witnesses.
3. Since WILL takes effect after the demise of the Testator, the condition put forth by your father imposing on you and your other brother for distributing Rs.22,500/- to the remaining 3 brothers & 2 daughters within 3 years has not been adhered to and this conditonal clause prevents the contents of the WILL and can not be termed as complete and valid.
4. In whose name the records in the Municipality/Corporation stand in respect of this property.
5. How could you execute Gift Deed in your daughter's favour when the subject matter is under dispute.
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
1. No body knows what the court will say but you should lodge your claim,

2. In case of Will, you shall have to file a petition for grant of probate, even if it is not mandatory in your area,

3. probate will give a legal seal on the said will,

4. After getting the probate, file petition for its execution,

5. You can thereafter file an eviction suit against the occupants,

6. While granting the probate the Court may ask you why have you not paid the amount to your brothers within the stipulated 3 years and in such case, you shall have to show proper reason,

7. If the court is satisfied with your reason for not paying, it may impose penalty and interest on the unpaid amount to be paid by you now as per court order.
Krishna Kishore Ganguly
Advocate, Kolkata
12127 Answers
233 Consultations
5.0 on 5.0
1) court would decide appeal on merits . if suit is bad for non joinder of necessary parties your appeal would fail .

2) respondents can always engage a lawyer now to fight case in appellate court 

3)  you have stated earlier partition suit dismissed . if it was dismissed how could it have been decreed in 2002 

3) you have to apply for probate of will in district court . you can mention reasons for delay in filing for probate . are the witnesses alive of the will ? you would need evidence of one witness atleast to prove will 

4) bank interest would be simple interest 

5)section 44 is applicable to co sharers
Ajay Sethi
Advocate, Mumbai
23318 Answers
1220 Consultations
5.0 on 5.0
1) you would need original will to file for probate . where is the original will ? 

2) if will is registered you can obtain certified copy of will from sub regsitrar office
Ajay Sethi
Advocate, Mumbai
23318 Answers
1220 Consultations
5.0 on 5.0
1. Have you filed the petition for  equal partition of the properties amongst all the legal heirs? If yes then what is the status of the case now? 

2. Getting the Will probated is mandatory in some places like Kolkata but not mandatory in Delhi. Find out whether it is mandatory in your place or not,

3. Even if it is not mandatory, you can file an application for the grant of probate which is nothing but putting a seal of the court on your claim about the will,

4. However, since you have already filed a partition suit in the year of 2002, it might have advanced considerably,

5. You have not mentioned about the present status of the said case,

6. If the defendants did not appear either personally or through lawyers, it will certainly go in your favour,

7. From where did you come to know that Bank interest will be charged @50 paise? Bank interest is normally charged on monthly rest,

8. Yes, section 44 of TP Act is applicable here,

9. For claiming adverse possession, he shall have to be in possession of the property for atleast 12 years against expressed wish of the owner of the property,
Krishna Kishore Ganguly
Advocate, Kolkata
12127 Answers
233 Consultations
5.0 on 5.0
1. File the application for granting probate immediately,

2. Original copy is not required at the time of filing probate application.
Krishna Kishore Ganguly
Advocate, Kolkata
12127 Answers
233 Consultations
5.0 on 5.0

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