• Partition of property

Hello Sir,
We are two sons and am younger.Elder one stays in abroad.I am the one who is looking of parents well being for about 15 years.Now my brother want to buy a flat with mixed amount of my parents and some of his contributions.I am totally against with this type of buying activity.He never came in time of need to look after the parents.Now he planned to remove some of the fixed deposits of my parents and contribute some amount and thought of buying a flat.I don't believe such an act will be beneficial to anyone in near future..In this situation can I ask for the partition of property.My father is bed ridden.Mother not treating us equally.CannI ask for more percentage than equal share.Relatives and someothers suggested that I can demand for 70 percent of the property.If I DNT take a step forward now,there is no guarantee of getting the property.please suggest.Thanks in advance.
Asked 2 years ago in Property Law
Religion: Hindu

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16 Answers

The property belongs to your parents. After them it belongs to you 2. Therefore as of now you cannot tell them how to distribute the property and money.

However you can request them.

Regards 

Rahul Mishra
Advocate, Lucknow
13220 Answers
48 Consultations

5.0 on 5.0

You cannot seek partition in the properties during the lifetime of your parents.

If the proeprty belongs to your father then you are not entitled to any share in the property as a right, hence legally you cannot seek either partition or your share in it, therefore your cannot restrict your brother also from moving ahead with his proposal when your father is ready to help him buy a proeprty with his money.

Better adjust with them and get what you want from them by moving in  a cordial manner with them.

 

 

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

During your parents lifetime both don’t have any share in their self acquired property 

 

 

2) on parents demise both would have equal share in property 

 

3) you would not have 70 per cent share 

Ajay Sethi
Advocate, Mumbai
84936 Answers
5617 Consultations

5.0 on 5.0

You cannot seek partition or you can protest agaisnt the present move by your brother or your parents supporting him.

If you do not want to take care of your parents on this  issue, you can very well get out of the scene or house and let them decide how to survive without your support.

 

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

Hi,

You may ask for the partition but you may not legally stop them in buying such properties. It may be a game of your elder brother to ask share in other properties by showing this trasnsanction.

Ganesh Singh
Advocate, New Delhi
6629 Answers
16 Consultations

4.5 on 5.0

You can file partition suit and claim your share in the same. If every legal heirs is ready then registered partition deed can be executed to outside the court. 

Prashant Nayak
Advocate, Mumbai
24933 Answers
58 Consultations

4.4 on 5.0

The property belongs to your parents and it is not their ancestral property and hence you cannot seek partition.

On a personal note I would advise you to look after your parents irrespective of the fact whether they give you the property or not. but this is me. 

Yo uh can request them to consider you too when giving away their property.

Regards 

Rahul Mishra
Advocate, Lucknow
13220 Answers
48 Consultations

5.0 on 5.0

A son can claim his share in an ancestral property even during the lifetime of his father but in self acquired property son dont have rights to claim during lifetime of his parents. Son claim share in self acquired property on parents demise. 

Mohammed Mujeeb
Advocate, Hyderabad
19012 Answers
31 Consultations

4.5 on 5.0

Better settle dispute amicably. 

Mohammed Mujeeb
Advocate, Hyderabad
19012 Answers
31 Consultations

4.5 on 5.0

Since the property is of your parents, the right of both the brother is equal on the property. But till your father is alive no one can claim over his property. 

It is only after he expires without will or testament, so for you it is better to either get the house registered in your name through a Gift Deed or get a Will in favor of your name. If the father gives the house with his concent then no one will be able to claim over that. 

 

You can also go for partition of the property but that suit will take around 2 years. 

Amol Chitravanshi
Advocate, Delhi
279 Answers
1 Consultation

4.0 on 5.0

If the property is your father's self acquired one,he will be having freedom to transfer his property to whom ever he wants to do.

But if he dies intestate then other family members can share that property equally.

If the property is your father's self acquired then you can't file a partition suit.

You can distribute the property only when your father is deceased.

I don't think legally you can claim  for higher percentage of share just for the reason that you have been taking care of your parents from the last 15 years.As a son it is your responsibility.

But of course at the time of partition of the properties,if every one in the family ,say you parents and your brother accepts for your request to have higher share ,you can get it.

Seshukumar Kuchibhotla
Advocate, Hyderabad
57 Answers

5.0 on 5.0

Dear Client,

You can not claim partition of your parents property till they alive. 

Jaswant Singh
Advocate, Gurugram
910 Answers
2 Consultations

4.8 on 5.0

Hello Sir,

Please be advised as follows:

In your case you need to understand the concept of Ancestral and Self - Acquired property (Property of your father which has been acquired by him through either his own earned money, gift deed etc. )

You being a co-parcener of your family have an inherent right of partition according to law and you can file a petition for partition from your father or  before the court of law if no agreement is reached within your family with respect to the partition.   

Your demand of partition with or without reason or justification cannot be questioned in the court of law.

Since you a major co-parcener of the property you have the right to demand your partition and all that you need to do is to clearly demand the same to your father or if he is not in a condition to respond you can communicate the same to your brother. Your intention of partition should be declared without any ambiguity. 

With regard to  the fixed deposit of your parents, your brother can only do so with the due permission of  your parents and  not otherwise since those fixed deposits are the self acquired property of your father. However at  the time of partition you cannot ask for more than equal amount on the ground that you have been taking care of your parents and your brother was not present at the time of hardships you have faced.

The partition in any case has to be equal and fair and if it is not fair as per any of the co-parcerner it would not be binding on them and  can be repudiated and it is not necessary that it has to be refuted through a suit and therefore a express declaration to that effect is sufficient.

Partition by Agreement:

 It is not necessary in Partition by agreement that the shares allocated to each and every coparcener , be absolutely be  equal (relevant in terms of you obtaining 70 percent or more provided your father agrees). A partition by agreement may also include within itself, a family arrangement where doubtful and disputed rights are compromised, with the primary aims of conserving property and avoiding litigation. A FAMILY ARRANGEMENT NEED NOT  BE REGSITERED AND CAN BE ADMITTED AS  AN EVIDENCE AS WELL.

Partition by Will:

Will should have unequivocal declaration of his intention of severance of the property and separation of things with the clear intention of the Karta (your respected father) to bring this to the notice of all the Co-parceners. Such Will has to be attested by the your father and your Brother. Communicating about  the severance to the Karta is sufficient enough communication for making the WILL effective. THIS HAS TO BE EQUAL 

Formalities for Effecting a Partition: If the partition is reduced to writing and the value of partition exceeds Rs100  it must be properly registered and attested,

In addition to this if your father agrees, he can also transfer property if he wishes  by a registered gift deed under Section 122 of the Transfer of Property Act.  

Harshit Singh Jadoun
Advocate, Noida
68 Answers
2 Consultations

5.0 on 5.0

See since it is self acquired property of the parents they can dispose of on there own legally you cannot ask for partition if parents are ready to do a partition you can ask them do same and you can request percentage as you wish legally you have no claim at this moment. 

Shubham Jhajharia
Advocate, Ahmedabad
25518 Answers
149 Consultations

5.0 on 5.0

See these are self acquired assets and you cannot force parents to give you share in the said property. 

Shubham Jhajharia
Advocate, Ahmedabad
25518 Answers
149 Consultations

5.0 on 5.0

Dear sir

Yes you can ask for partition before that if they proceed without your permission but it will be your father's choice that how much share will be given to whom among both of you. 

And you can also raise the issue that if they buy property without your consent then how will you be able to take care of them as you were looking after them before this.

 

Mohit Kapoor
Advocate, Rohtak
10688 Answers
7 Consultations

5.0 on 5.0

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