Article 65 provides for a suit for recovery of possession of immovable property.
Getting possession of portion of flat in a cooperative society
My mother was the owner of a flat in a cooperative society. She had made a will in which she had divided her entire property equally among her two sons. I am the younger son. After her expiry my elder brother by virtue of being a nominee got the membership of the society I moved to the court and got probate of the will and also filed a suit. I got the probate and also the learned judge gave the order that I was the jt owner of the said flat finally my name was recorded in the register of the society and a duplicate share certificate was issued to me as my elder brother did not part with the original certificate. Now I want to know as to how I have to take my possession. Since my elder brother his wife and married daughter reseed there. What action can I take if he does not want to negotiate. What is the best course of action. to be taken by me
Asked 5 years ago in Property Law
Religion: Hindu
9 Answers
Hello,
Send a legal notice to him thereupon either claiming your share in the property or claiming the amount whereof.
If he refuses to do the either then you will have to file a suit for possession and partition.
Regards
Dear Client,
On the basis of probate, your ownership is declared in the flat by court. Now take possession of it and if brother put hindrance than file contempt of court as its violation of court order.
There`s no need for suit of possession as declaration of ownership already passed by Probate court.
Sir file a suit of partition before the civil court along with the possession of the property, since you are joint owner of the property you can ask equal share since it is a flat and cannot be partitioned it can be sold and the proceeds can be divided or court shall put you in equal possession of the flat.
you can go and stay in said house
2)if you are restrained from entering said house file suit for partition for division of house by metes and bounds
File a partition suit for selling the flat and distribution of sale proceeds between two brothers equally
1. Based on the probate decree and other related documents, you can file Partition suit /part possession suit in the local civil court. IF the Flat is a single unit with single entry door, you will find it difficult to proceed, atleast legally. So try for amicable settlement by buying out his share .OR. selling your share in the property and maintain relationships.
2. Put the Society on Legal Notice, restraining them from making any further Transfer /changes in their records & registers.
Keep Smiling .... Hemant Agarwal
File an execution case in the same court to enforce the order and decree, along with an application for police help to take the possession.
If your brother is reluctant to divide the property, then you may have to file a partition suit for division of party into two equal shares and allotting one such equal share to you.
If division is not possible then the court will bring the property to auction sale and the sale proceeds will be distributed to both equally.
