Terrace forms part of common area for benefit of all owners
2) your nephew cannot deny you access to terrace
3) file suit seek court orders restraining tryout nephews from denying you access to terrace
Property partition
Dear Sir I am 59 years old. My father expired in 2007 leaving a house measuring 250 sq yds. as per his registered will he bequethed this property in the name of my elder brother and me. My brother died in 2008. me and my nephews (brother agreed to demolish our house measuring 250 sq yds. to construct a modern four storey with basement and a stilt parking. construction started in december 2017 and the structure was ready in april 2018. I opted for a duplex on Upper ground and Ist floors as suggested by our architect and my nephew opted for two seperate floors with three bedrooms each floor on IInd and IIIrd floor. I shifted back from rental house to our newly constructed home in march 2018 whereas my nephews could complete their portion ( IInd floor) in october 2018. Both the families were interested in developing a common use terrace garden on roof top and drawing was made by architect. Surprisingly My nephews locked the terrace in april 2018 and denied me entry on terrace. My nephews says that the top floor owner has exclusive rights on terrace, on the basis of valuation of lower and upper floors. They want to valuate different floor for partition deed. Kindly suggest
Asked 6 years ago in Property Law
Religion: Hindu
19 Answers
1. Is there a written agreement between you and your nephews which provides for exclusive terrace rights to your nephew?
2. Unless the answer to the above question is in affirmative, the terrace is common. Consequently, you can file a suit for mandatory injunction to unlock the terrace and also seek permanent injunction to restrain your nephews from locking the terrace again.
what is the mode of partition deed is it on the basis of value of different floor or the area occupied by occupents.
Asked 6 years ago
No there is nt any written agreement, everything is mutual understanding nothing was occupied forcefuuly by any party
Asked 6 years ago
In partition deed the parties have the liberty to agree to any mode of division. There are no rules.
Since there is no written agreement you may adopt the remedies mentioned by me in my first reply if there is no amicable settlement.
In absence of any written agreement between you and legal heirs of your brother, terrace would fall in the common area of the building.
Your nephew cannot lock the terrace until and unless he has exclusive terrace rights. is actions of locking the terrace which is the common area is illegal for which you can file a suit for injunction with interim relief application in civil Court against him in order to get it opened and to restrain him from doing any such action in future.
In partition deed, all the conditions can be mutually agreed upon by the parties. The law does not stipulate any specific conditions per se.
If there is no chance of amicable settlement between you and the legal heirs of your brother, you will have to file a suit for partition and injunction against them.
partition would on area occupied by the occupants
enter into deed of partition for division of property by metes and bounds
If it's a common terrace he can't lock the same. You can file a complaint of wrongful restraint against him with the police. You can also file suit for taking diirection from the court for the same
Terrace rights are not exclusive neither can be owned by single owner. Terrace is common area. His mind has been changed and adopting false practice.
See if there no written agreement then in that case you both the equal right over the terrace and common area below, see if he file partition suit then property can be divided based on the value of the property by the court.
See the principle of partition is both the parties should get equal value share in the property.
See it is better you decide mutually and make a registered partition deed.
It is to be seen as to what provisions have been made in your sale deed or property documents with regard to rights and use of terrace. Why a particular floor owner has put lock?
Their claim for terrace's exclusive rights would depend ion the recital made in the partition deed.
If there is no such recital in the partition deed, then you may file an injunction suit agaisnt them restraining them from preventing you to visit the terrace and have equal rights in the terrace at par with them.
You know that better than anyone here because you have the registered partition deed in your possession.
If you are not able to ascertain the details you may better approach any advocate in the local and get his opinion on this and proceed with the legal actions as recommended.
If there is no mention about the exclusiveness of the terrace usage by any particular party then you may file a suit seeking injunction restricting them from stopping you to use the terrace at par with them.
Dear Sir
Try to talk with your nephew for allowing you the use of terrace because areas terrace and Parking comes under common area and no owner can deny access to other owner. As there is no agreement regarding terrace rights your nephew can't deny you the access of terrace.
If he still does this yon can file a suit for permanent injunction to get order for terrace access from court against your nephew.
