• Property partition

We are two brother and my cousin are two brother, we have ancestral property from where our cousin are getting rent of around 1 lac pm through constructed residential building but we two brother are getting nothing out of it, my father died 10 yrs ago, both my father and elder father has the share of 50% share in each property, from which rent coming are enjoyed by our cousins, last two year before we have file partition suit in the court but still the case is going on and we two brothers are harassed by every means. last month I went to construct one house in our extended portion of residential property but our cousins stops by every means to construct our house.

My question How can we get share of rent from residential building which our two cousins presently enjoying.
How long the family partition dispute will take place.
How can we construct our house in that extended residential property jointly owned by our fathers,
can we know sell our share of property to Third party when our family partition suit is undergoing.
Asked 1 year ago in Property Law from Saudi Arabia
Religion: Muslim

This is my response to you:

1. While your partition suit is pending you must have filed other applications in the same suit?

2. If not, then file a suit for injunction against the other two brothers so that they cannot use it;

3. Also file an application for stay so that they cannot create third party interests on the property;

4. Till the suit is finalized argue the application in the civil court;

5. Also try to get interim orders in the court in your favour;

6. Also ask the court to expedite the process since your rights are getting infringed.

Gowaal Padavi
Advocate, Mumbai
1826 Answers
2 Consultations

5.0 on 5.0

Dear Client,

In partition suits, court first decides share in property as an interim than disposed case by ordering partition on meats and bound basis and from 2 years, no relief than this is incompetency of your advocate.

You should claim mesne profit in the same partition suit, than court will order 50% rent payable to you.

Change the lawyer to expedite proceeding and until partition not decide and your portion in the joint property not confirmed, it will tough to construct, so press the case to disposed.

Without partition, sale not possible.

Yogendra Singh Rajawat
Advocate, Jaipur
13251 Answers
18 Consultations

4.6 on 5.0

take out application in partition suit to direct cousin to deposit rentals received from property in court

2) partition suit takes 15 years to be disposed of

3) if you are obstructed by your cousin seek court orders to restrain cousin from creating obstacles in carrying on construction

4) you can sell your share in house to third party

Ajay Sethi
Advocate, Mumbai
66996 Answers
4045 Consultations

5.0 on 5.0

July 13, 2018

Dear Gentleman,

It is a civil suit. It usually takes longer time than criminal proceedings

Before answering your questions, I would like to ask you some questions:

1) Whether the electrical connection was obtained in the said property? if yes, then on whose name? If it is in the name of your uncle, the consent is obtained from your father or not (You can obtain the details through RTI with relevant Electricity board)

2) Whether the said property is still on your father and uncle's joint name or the name of your father is removed?

3) It was better to suit the case to deposit the rent in the court instead of giving anybody's hand till the judgment comes

Please feel free to contact me over the phone if required

Regards,

MEHUL KAKKAD

Mehul Kalyanjibhai Kakkad
Advocate, Vapi
5 Answers
1 Consultation

Not rated

1. In the partition suit ask for appointment of a Receiver who would take accounts and deposit the court of all revenue earned from the property till disposal of the suit.

2. Since your father has share in the property he can very well build a house on the undivided property not exceeding his share provided the same is within his possession.

3. The making of constructions is not prohibited in the joint property during the pendency of the suit.

Devajyoti Barman
Advocate, Kolkata
17816 Answers
253 Consultations

5.0 on 5.0

You have to file a civil suit for the partition of the property and if there is any settlement in parting that thould be considered by the court if not then you have to go as per court orders.

Vimlesh Prasad Mishra
Advocate, Lucknow
5511 Answers
18 Consultations

4.9 on 5.0

Sir you claim the mense profit in the same suit from the property and can claim the earlier rent arrears for your share.

The partition suit can take time like 5-10 years to settle the dispute.

Sir till the suit is decided and your share is demarcated you cannot technically build the house.

if there is stay no you cannot further if there is not you can sell the undivided share by informing the buyer that there is suit pending

Shubham Jhajharia
Advocate, Ahmedabad
19365 Answers
76 Consultations

5.0 on 5.0

hello

a partition suit must be pending in the district court, in that very same case an application for mesne profits must also be filed if it has not been filed earlier. these are the profits which accrue to the owner or shareholder where the land is disputed and not in his possession. the suit may take some time. they may also go in appeal in case you win in the lower court.

regards

Rahul Mishra
Advocate, Lucknow
4340 Answers
11 Consultations

5.0 on 5.0

1) it should not take more than 6 months for court to pass orders for appointment of court receiver and for deposit of rentals in court

2) since suit is marked as exparte against defendant court can pass final orders after considering evidence on record

3) you can seek injunction restraining creating third party rights by cousins

4) you need court orders for carrying on construction of house

Ajay Sethi
Advocate, Mumbai
66996 Answers
4045 Consultations

5.0 on 5.0

When no body presented it self to defend the case, good for you, should press for mense profit.

Get stay order or status quo.

You can construct the house, but cousin will create nuisance so better go with court order than police will support your cause.

Yogendra Singh Rajawat
Advocate, Jaipur
13251 Answers
18 Consultations

4.6 on 5.0

My question How can we get share of rent from residential building which our two cousins presently enjoying.

A. In order to get arrears of rent, you will have to file an application for mesne profit in the same court where is the partition suit is currently being adjudicated, wherein a court receiver would be appointed.

How long the family partition dispute will take place.

A. Partition suits take around 8 to 10 years

for disposal.

How can we construct our house in that extended residential property jointly owned by our fathers?

A. If there is no stay order against the same,then you can construct house on the property jointly owned by your father and his brother, otherwise you'll have to seek permission of the court before doing the same

can we know sell our share of property to Third party when our family partition suit is undergoing.

A. If, there is any stay or injunction order, you cannot send your share to any third party during the pendency of partition suit, until the stay is vacated by the court.

Siddharth Jain
Advocate, New Delhi
4785 Answers
52 Consultations

5.0 on 5.0

1. As all have mention that share of Rent or Mesne profit application is to be file in the court and a receiver to be appointed to collect and deposit rent in the court, how long it will take by the court for this application to pass ?

A. The application for mesne profits would be decided in 3-4 months and that again is variable from court to court and state to state.

2. Since now the status of case is Ex-Parte in our favour, what is the procedure now and how well we can utilized this Ex-Parte judgement.

A. There would be no delay as the other side has been proceeded experted, but they can always file an application for setting aside ex Parte order. Ex-parte judgement also has the same validity as a judgement which has been passed after a contested suit. In both cases, appeal can be filed.

3. Now recently our two cousins are going to renovate a small portion of house(not for residential purpose) and lease this portion to one of the third party . Can we stop to do this Act through stay order injunction or there is any other method and within what time we can get stay order.

A. You file a suit for permanent and mandatory injunction, along with temporary injunction restraining your cousins to create any third party interest in the property. If you'll show urgency, this application would be disposed off expeditiously.

4. my last question can I construct a house not separate independent house (this house to be constructed in small piece of field which is the extended portion of our residential building where we have possession), for this can I file an application in the court to allow me to construct or renovation of house till the suit is finalized.

A. If there is no stay order or injunction order, then you can proceed to build a house the extended portion of the property in your position, but in all opposite it would try to get up stay on construction from the court.

Siddharth Jain
Advocate, New Delhi
4785 Answers
52 Consultations

5.0 on 5.0

1. The court shall pass an order after giving the opportunity to other party to file reply and then it can be argued and court shall decide it will take some time.

2. If the exparte order is passed in your favour you can file for the execution of the same.

3. Yes you can file an interim injunction application under order 39 of CPC to get stay on any kind of transfer of property.

4. Yes with the permission you can otherwise wait till the share is demarcated by the court.

Shubham Jhajharia
Advocate, Ahmedabad
19365 Answers
76 Consultations

5.0 on 5.0

You can file a Petition seeking share in the revenue i.e., rental amount.

Alternately you can seek injunction and to deposit the rent with the court.

You cannot construct or sell property till disposal of suit.

T Kalaiselvan
Advocate, Vellore
56740 Answers
705 Consultations

5.0 on 5.0

1. It depends on how fast your lawyer moves the case and cooperation from other side

2. File a final decree petition.

3. Yes you can obtain stay order.

4. Your application may not be entertained till disposal of suit however you can go ahead.

T Kalaiselvan
Advocate, Vellore
56740 Answers
705 Consultations

5.0 on 5.0

1. You have taken the right step in filing the partition suit against your cousins.

2. If hearing of the said case is being delayed, then file a Writ Petition before the High court praying for a direction upon the Court below to expedite the hearings and dispose of the matter with a fixed time frame like next 6 months.

3. You should also file a petition before the Civil Court praying for a direction upon the tenants to deposit the rent before the Court in order to enable the Court to make partition of the said earnings from your inherited properties as otherwise, your cousins might spend out the same.

4. It will be prudent on your part to get the property partitioned by metes and bounds first and then make construction upon on your demarcated area.

Krishna Kishore Ganguly
Advocate, Kolkata
22519 Answers
595 Consultations

5.0 on 5.0

1. You might have got order for ex-parte hearing. Do not bank too much on it since they might be able to get the said order vacated by filing an application and then file written statement. This type of tricks are generally played by the Opposite Parties to delay the matter.

2. You can file a petition before the Court directing the tenants to deposit the rents directly to the Court. This will save the cumbersome procedure of appointing a receiver

3. You can also file a petition under order 39 Rule 1 & 2 praying for an order upon the Opposite Parties restraining them in entering in to the said premises till the suit is disposed off.

4.The suit property has not yet been divided and demarcated by the Court for which it is not clear as to which portion of the property will be partitioned and demarcated in your favour.

5. So, it will be prudent on your part to get the property partitioned first to take up any construction on any portion of the said jointly inherited property.

Krishna Kishore Ganguly
Advocate, Kolkata
22519 Answers
595 Consultations

5.0 on 5.0

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