• Division of ancestral property

Hello,

I am a married woman living in USA. We have an ancestral property in Delhi. My father is 83 years and in ill-health. My brother is seeking to take over the entire property..How can I protect my interest? Can this property be partitioned during my father's lifetime? 

Thank you/ Sunila Bose
Asked 1 year ago in Property Law from United States
Religion: Hindu
1) what basis you say property is ancestral? 

2) if property is standing in your father name your brother cannot take over property unless your father executes gift deed in your brother favour 

3) is your father of sound mind . get your father medically examined by doctors who can certify whether your father is mentally fit or not

4) your father can make will in your brother favour if he so desires as far as his share of property is concerned
Ajay Sethi
Advocate, Mumbai
23235 Answers
1219 Consultations
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1.To term the property as ancestral, the property should not have been partitioned for 4 generations.  Then only it qualifies tol be called as ancestral property. Great grand father to great grand children.
2.You can bring stay to the sale or partition of the property if you apprehend that your brother is in the process of taking over the property.
3.Yes, this property can be partitioned during your father's lifetime.
Shashidhar S. Sastry
Advocate, Bangalore
1239 Answers
59 Consultations
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1. Ask your father to divide the property during his lifetime to avoid scramble for possession after his death.

2. If he refuses then you can file a suit for partition in the local civil court,

3. In the said partition suit you can apply for injunction as well so no part of the joint property is sold off behind your back to frustrate your relief as sought for in the court.
Devajyoti Barman
Advocate, Kolkata
5196 Answers
54 Consultations
4.9 on 5.0
During the life time of your father you and your brother can not claim your share of the said property.
Minansu Bhadra
Advocate, Kolkata
266 Answers
23 Consultations
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1. No. The said property belongs to your father and no body can claim any share on it during his life time,

2. You can file a partition suit after the demise of your father intestate,

3. If your father executes a will, the property so willed will be bequeathed to the legatee so mentioned in the will,

4. No probate is required to be taken for properties situated at Delhi,

5. So, it may be that your brother may influence your father because of his proximity with him and get a will executed in his favour.
Krishna Kishore Ganguly
Advocate, Kolkata
12106 Answers
231 Consultations
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1. On what basis do you claim the property to be ancestral?

2. Only the title deed of the property can throw light on whether the property is ancestral or not.

3. If, however, the property is ancestral then you have an equal share therein, which implies that your brother cannot claim the entire property. 

4. If you apprehend that he may usurp the property then you should immediately seek a stay order from the court to stop him from defeating your rights therein. If he sells the property and thereby creates third party rights then it would be difficult to claim your share therein.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
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Every coparcenary has interest in ancestral property. At any time even in the life time of father any coparcenary har right to demand his share in the property if father is agree because father is karta or manager of the ancestral property so his consent is necessary. If he refuses to give consent then you can file suit for partition, 

in Jaswantlal Linabhai vs Nichhabhai Vallabhbhai And Ors. court has held that partition would be made according to the pleasure of the father. 

State of Bombay v. Chhaganlal Gangaram Laver; supreme court has held that consent of karta should be necessary in a case for a suit for partition of joint family property.

Revanasiddappa & Anr vs Mallikarjun & Ors [2011] supreme court has held that the legitimate son acquires by birth any interest in his father's estate and he can therefore demand partition against his father during the father's lifetime.

your father is in ill health so your brother has opportunity to do any wrong , you should file suit for temporary injunction for protection of the property because you are living in USA, there after you can file suit for partition.
Shivendra Pratap Singh
Advocate, Lucknow
2745 Answers
41 Consultations
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