• Daughter right in father intestate property

Father died intestate 4 years back leaving behind a house. 2 Sons/3 daughters made Katha(all have signed) in mother's name at that time for house tax payment purpose. Mother is paying house tax since then. Also she has given that house for rent staying in another house which is in her name. She is using rent benefit alone.
Now one of her daughters is in a financial trouble and wish to claim her share in the property. But mother claims that the house is in her name and meant for her son only. Now the daughter feels cheated as her family members have taken her signature on Katha transfer papers during mourning period at that time. She has not signed any other paper(in her knowledge) nor visited any sub-registrar office in the matter. Mother is doing age old discrimination,has refused daughter her share and is interested in giving it to her son.


Khatha is in mother name and she is paying house tax sinceI 4 years. All documents paper are with mother under her custody . 

 Daughter is not having property papers copy. They have obtained her signature within 2 to 3 months from the death of her father during mourning period 4 years back. Daughter hasn't visited property so far and does not know even the address of the property.
 
 Clues available are 1. Site alloted by BDA during 1984-85 
 2. Khatha change was done between January to March 2015, at B B M P. 
3. They are paying House tax regularly online

Please clarify:-
1. How to file partition suit in the absence of property documents paper. How about the option of filing interim application in petition suit restraining the mother from executing any will or other documents in respect of property.

2. Being Co-owner, Can we claim property documents copies from mother as a matter of right.


3. Can search be made in father's name at Sub registrar office or at B B M P(where online house tax paid regularly), to get basic property details. How about RTI option in respect of Khatha papers filed at B B M P during 2015 so that we will get all property documents copies.
Asked 13 days ago in Property Law from Bangalore, Karnataka
Religion: Hindu

Dear Madam,

My answers are as follows:

1. How to file partition suit in the absence of property documents paper. How about the option of filing interim application in petition suit restraining the mother from executing any will or other documents in respect of property.

Ans: You have to take certified copies from the concerned offices like Sub-Registrar Office and BBMP etc. Encumbrance Certificate, certificate copy of Sale Deed, Katha extract etc available to any person as there are public documents. Then file partition suit for equal partition. In that suit on the first day of institution of partition suit file interim application seeking a direction to mother not to execute any document in respect of above property and Court will issue ex-parte order accordingly.

2. Being Co-owner, Can we claim property documents copies from mother as a matter of right.

Ans: You can claim documents from the concerned officer then after filing suit you can move an application for producing originals before the Court by the mother.

3. Can search be made in father's name at Sub registrar office or at B B M P(where online house tax paid regularly), to get basic property details. How about RTI option in respect of Khatha papers filed at B B M P during 2015 so that we will get all property documents copies.

Ans: RTI option will be delayed so you may contact some brokers and you will get help from them on payment basis.

Kishan Dutt Kalaskar
Advocate, Bengaluru
3544 Answers
76 Consultations

5.0 on 5.0

1. If the title of your father is not disputed as it very likely then there is no need to give any proof of tile in the partition suit.

2. So on the basis of actual aspects you can file a suit for partition to claim your 1/6th share in the property. In the same suit you can seek injunction so none can transfer their respective share in the property. In any event your mother does not have more than 1/6th undivided share in the property and hence by no means she can transfer more share than what she legally owns. 

3. Yes, you can do so.

Devajyoti Barman
Advocate, Kolkata
15387 Answers
211 Consultations

5.0 on 5.0

take search in sub registrar office and obtain certified copy of property documents 

 

2) then file partition suit and seek injunction restraining mother from selling the property 

 

3) you can issue mother legal notice to furnish copy of property documents 

Ajay Sethi
Advocate, Mumbai
56959 Answers
3456 Consultations

5.0 on 5.0

1. Since your father died intestate, for his self acquired property, your mother, 2 sons and 3 daughters are entitled to equal share in the property in the ratio of 1/6 th.

2.  Just because Khata is in your mother's name, it doesn't mean that she is the absolute owner of the property.

3.  If you have not relinquished your right on the property by way of execution of registered Release/Relinquishment Deed in favour of your mother or anyone so far, you are entitled to 1/6th share in the property. Even you are entitled to equal share in the rent proceeds.

4.  Send a legal notice to your mother, for partition and separate possession corresponding to your share in the property. If she declines you can knock the door of court to get favourable order for declaration, partition and separate possession of the property.

5. Your mother at best can gift her share in the property in favour of her son and your mother cannot unilaterally decide to give the entire property to her son, since she is a co-owner, alongwith her children and not an absolute owner of the property.

6.  You can obtain Encumbrance Certificate from the jurisdictional Sub-registrar's Office to know the complete details of the property. You can also obtain certified copy of the sale deed from the jurisdictional Sub-registrar's Office.

7.  Before going to court, send a legal notice to your mother and if there is no positive response, then only approach competent court.

Shashidhar S. Sastry
Advocate, Bangalore
1835 Answers
125 Consultations

5.0 on 5.0

1) you need to apply for partition suit in the civil court.

 

2) Yes, you can ask for property papers from mother or nearest revenue department you can get.

 

3) On BBMP site by address you can tax receipt online and other papers in revenue department.

Ganesh Kadam
Advocate, Pune
5475 Answers
40 Consultations

4.9 on 5.0

Issue a legal notice to mother through an advocate and file a injunction order and also you can file partition suit. 

 

Mohammed Mujeeb
Advocate, Hyderabad
4635 Answers
3 Consultations

4.5 on 5.0

You can file the same and get the copy from sub registrar offices.yes can take interim orders for the same. You can give directions through court to mother.

Prashant Nayak
Advocate, Mumbai
4875 Answers
3 Consultations

4.8 on 5.0

1. Transfer of katha is not tantamount to transfer of title as katha is a document relevant for revenue purposes only. Unless the daughter has executed a release deed her share is intact which she can cull out by filing a suit for partition in the competent civil court.

2. Since the daughter is not having property papers she should obtain a certified copy of the same from the sub-registrar's office.

3. In her partition suit she can also seek temporary injunction to restrain mother and her siblings from creating third party rights in the property during the pendency of partition suit.

Ashish Davessar
Advocate, Jaipur
25198 Answers
706 Consultations

5.0 on 5.0

1. See daughter can find out property details from the office where the khata was transferred and in same jurisdiction a partition suit can be filed and a notice can be given to other parties to bring property paper on record. Along with an stay application on the suit property.

Even they make any gift or will then same can be cancelled and are invalid.

2. Yes she can claim the proeprty documents.

3. Yes see can get a search report of said khata by paying fee and get certified copies of same 

Shubham Jhajharia
Advocate, Ahmedabad
11874 Answers
45 Consultations

5.0 on 5.0

1.  You obtain the certified copy of the registration document from the registrar's office and file a partition suit seeking partition and separate possession of your legitimate share in the property left behind by your deceased father who is reported to have died intestate.

Please be aware that the khata is not a title document hence you cannot be cheated saying that khata is in her name hence you will not get anything.

 

2. You can claim but if she refuses then you may have to appraoch court only for this.

 

3. You can get the documents from the registrar's office by making a search through an advocate.

T Kalaiselvan
Advocate, Vellore
46951 Answers
557 Consultations

5.0 on 5.0

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