Hello,
Yes you can definitely file a suit and claim your 50% share in the property.
Produce the injunction order also before the court to establish the property was not of your brother and as such you also have a claim on the property.
Regards
Question on partition suit
Hi, I need suggestion on the below issue. For my mother we are 2 kids Me (Daughter) and my Younger brother (Son), After my marriage my mother purchased 2 acres of land which is registered in my brother name. My brother try to sell the property but my mother filed a injection suite mentioning this is joint family (HUF) property, My brother contested and failed to prove the source of income to buy the property so court passed on order and injection on the property mentioning even though it is registered in my brother name source of income is from parents so it is HUF property. Later my mother shared property between Me and my brother orally we were cultivating our lands, Now my mother and my brother are died 1 year back and my brother daughters are denying my share, I need your suggestion can I file a partician suite to get 50% of my share.
Asked 7 years ago in Civil Law
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Hi Sir, Thank you for your response, When I spoke to few lawyers there were few issues they raised 1. When property was purchased you were already married so you don't get rights. 2. In the injection suite my mother not made me as a party instead she himself and my brother daughters were parties 3. When property was purchased my father was not there, he was already dead. 4. I have not filed a partition suite when my brother was there, This I have not filed because I was in possition of my share and my brother not disputed my position. Please let me know still I can file a suite and is there any consideration I should take.
Asked 7 years ago
1. It does not matter since the same is in the nature of self acquired property.
2. You were not the necessary party at that particular time.
3. Then you have even strong case, show that I was in possession and as such pick up the doctrine of adverse possession also.
1) you can file partition suit for division of property by metes and bounds
2) rely upon court orders passed in mother favour that it is joint family property bought for benefit of joint family
1. The property of standing in the name of your brother would be treated as the property belonging to your brother only .
2. Now if your mother or you wish to claim it as a HUF then your mother will have to file a suit under Benami transaction Act first stating that it was purchased in benam of your brother.
3. Now the relief sought for by your mother is not the proper remedy as the court is not going to pass any order of injunction unless the land is found to belonging to your mother.
4 The suit for partition at this stage will not stand.
you can file partition suit for division of property by metesand bounds
2)seek injunction restraining sale of property by your neices
3) merely because you did not file suit earlier does not dis entitle you to claim share in property
based on the decree of the court you have to file a partition suit on the property claiming that it was the property of the mother you are rightful heir of the 50 percent of the property, since there is already court order you shall establish your share in the property.
Sir since the property was purchased by mother brother is only dummy owner and the mother was right ful owner of the property so even if you were married you have legal rights over the property, further even if you were not party to the suit the order in regard to the property in dispute. The partition suit is not barred by limitation as in case when your brother was there was a family oral agreement which is legal and acceptable. So the oral partition by mother as family settlement is legally accepted.
A gift under Hindu law need not be in writing. However, a gift under the law is not valid unless it is accompanied by delivery of possession of the subject of the gift from the donor to the donee.
law requires delivery of possession to complete a gift of immovable property, that law has been abrogated by sec. 123 of this Act.
Citation
Anathula Sudhakar vs P. Buchi Reddy
This is not actually HUF but self acquired property of mother in which both have 50% share .Interstate Succession. Marriage has no repuccusion. Partition suit valid.
1. The Court has already decided that the said property registered in the name of your brother is a HUF property.
2. So, you an now very well file a partition suit claiming your 0% share of the said HUF property.
1. The property actually belonged to your mother which she had purchased in the name of your late brother.
2. So, the share of the property belonging to your mother who died intestate, can be claimed by you which is to be divided in to two portions for yourself and your late brother each.
3. Your late brother's share of the said property will be inherited equally by all his legal heirs.
4. So, you can file the partition suit making the legal heirs of your late brother as parties.
1. If the court had decree the suit filed by your mother and declared her the true owner of the property and granted permanent injunction against your brother then your mother is the absolute owner of the property. So after her intestate demise her property devolved through succession on her children equally.
2. You have a 50% share in the property of your mother which you can cull out by filing a suit for partition in the civil court against the legal heirs of your brother.
3. Your date of marriage does not have any nexus with the nature of rights which you have in the property of your mother.
Straight away go to respective Tehsil of the area and inspect the Khatauni of your khewat you will find your relief there.
Dear Madam,
You can file partition suit and claim 50% of the property since you are entitled for the same. The proform prayer is as follows:
==========================
PRAYER
WHEREFORE, the plaintiff prays that this Hon’ble Court may be pleased to pass an judgment and decree in favour of the plaintiff and against the defendants as follows.
a) Directing the defendants to effect partition of all the suit schedule properties by metes and bounds and put the plaintiff in possession of 1/2 share.
b) For grant of costs of the suit and such other relief’s as this Hon’ble Court may deems fit under the circumstances of this case, in the interest of justice and equity.
APPLICATION UNDER ORDER 39 RULE 1 & 2 READ WITH SECTION 151 OF CIVIL PROCEDURE CODE, 1908
For the reasons stated in the accompanying affidavit it is humbly prayed, to restrain the respondents from alienating the suit schedule properties, till the disposal of this appeal, in the interest of justice and equity.
Plaintiff
Through
Advocate
As per law, since the property was purchased by a registered sale deed on your brother's name, he is the absolute owner of the property.
However since there is a precedence in the form of an injunction suit decree in favor of your mother, you may cite that as reference stating that this comes under HUF proeprty and seek partition of the proeprty equally and for separate possession of your share in it.
You can put the burden on court, let the court decide your eligibility or entitlement
1. This is incorrect and mis guiding information.
2. It was not necessary to make you as a party to suit becasue she is fighting for her rights agaisnt her son over the property supposed to have been bought out of her funds, hence that cannot be fatal to your partition suit.
3. That is not a question of law.
You are seeking a share in the HUF property, hence his presence was not required for claiming your rights in the property.
4. Since you were in possession of the property and have evidence for that you can vouch upon the evidences in your possession and claim your rights, let the court decide the same on merits.
Hi Sir, Thank for all your valuable answers. I need clarification on few more questions with respect to above mentioned partition suite. 1. My late brother have 2 daughters and since we not partitioned yet, do I am eligible for 50% of my share or it is equally divided between Me and my late brother daughters as 1/3 for each. 2. After 10 years of my marriage and before dispute land registered in my late brother name, I purchased some agricultural land with my self income last year I gifted my self acquired property to my son. Since I am filing partition suite can my late brother daughters create dispute on my self acquired properties. Is there any chance for them to claim the share in my self acquired properties claiming as joint family properties.
Asked 7 years ago
As it is Self acquired property , it will become your own property which you can convey to anybody without your children's or bro daughters consent.
The property will be divided into two equal parts, you will entitled to one such share.
They have no rights over your self acquired property.
It is your own and absolute property hence you had full rights to settle the same in favor of your son, hence they do not have any claim towrds it.
You are entitled to 50 per cent of your share
2) your brother share would be divided among his legal heirs
3)?brither daughters have no share in your self acquired property which has been gifted to your son
1. 50 percent yours 25 each there , brother 1/2 share further 1/2 into his daughters.
2.No they have no right and no suit is maintainable on your self acquired properties.
50% yours and rest 50% will devolve in his daughters.
On your self acquired property, not even your son had any claim before gift executed. Daughter`s have no say.
1. The property stood in the name of your late brother but it was proved before the Court that it was your mother's property who died intestate. The said property will be equally owned by you and your brother (after his demise his share will be inherited by his legal heirs i.e. his wife and two daughters).
2. The land which you have purchased in your name and hen gifted to your son can not be legally claimed by the said two daughters of your late brother.
No.
Hi Sir, Before going to court I try to make one more attempt to solve the issue with discussion while in the discussion I came to know the below issue. Few Months back after my brother dead. Between Me, My late brother daughter and some other villagers together we made an registered agreement for the road facility for all our agricultural lands, As per the agreement we made a road with our own understanding which passes through My self acquired land, The land we are disputing currently in my brother name and some other lands of our villagers. In the agreement it is mentioned that dispute land is having khatha in my brother daughter name, which is false and still it is in my late brother name. I have also not given much attention to it while registering the agreement because it only a agreement for the road and only realizing this fact now after rereading the agreement document. Now she is threatening me showing that registered agreement and claiming I already accepted that the schedule property is late brother daughters. Does that agreement will have any impact on my partition suite? Can I ask court to unbind that document for me which is executed 5 months before and it have false statement. Should I need to pay any count Fee for unbinding that agreement to me? Please advice me on this issue. Thank you.
Asked 7 years ago
It would not have impact on your partition suit if you are able to show that Khata still stands in brother name
You cannot take plea that agreement is not binding upon you
The registered agreement can be presented as evidence in court to dispute your claim stating the property by yourself accepted in name of your brother. There is no procedure from unbinding the agreement it can be just terminated as per condition of the agreement
If you feel that this registered document has been obtained by playing fraud on you, then you can file a petition seeking to cancel the registered agreement on the basis that the document was obtained by playing fraud on you and it is agaisnt the natural justice and also on other points that you may rely upon.
In fact if you dont get the registered document cancelled then it may create an impact in the partition suit as well.
No impact of such agreement, details can be mention wrong in agreement. In records it`s still in brother`s name and same will prevail.
You can apply for rectification of agreement at sub registrar or can issue public notice in village that wrong information included in agreement and same shall not be relied.
No need of court involvement.
1. The said agreement certainly will be used by your brother's daughter to her advantage.
2. You should immediately write to all the parties to the said agreement that the said statement mentioned in the agreement is not correct and you have signed it without going through it in details as it was basically for the road only passing through your land.
3. You shall have to send them notice for registering a rectification agreement.
4. So, if she claims later on that you had agreed about her ownership of the property in question, you can site those letters issued by you.
1. Yes you may tell the court that based on false facts you were forcefully made to sign the agreement.
Declare this in your suit of partition only so that they may not get the same as a defense.
Regards