• Partition suit

Hello., Good Morning.,

My mother's Father has self accuried property since 1978. Mother got married in 1962. My father expired in 1997. Grand father ( Mother's father ) also expired in 1998. 

My mother has 1 elder brother and 1 elder sister ( elder sister unmarried and expired in 2006 ). So Elder brother took NOC to get katha transferred in his name in 2002. For this NOC grandmother, my mom and elder sister have signed. Not singed in release deed or partition deed.

Last year in Feb2019, they have constructed the house and lied to get the signature but we have not signed any document. After 6 months we came to know Elder brother has executed the declaration of deed.
I want to know the below points

1. Since katha has already transferred to his name can't we claim ?
2. Any time bound for this claim ?
3. As my grand father died intestate and before 2005 ( before 2005 law ammendment ) do we have right to claim our share ?

Thanks in advance
Asked 6 years ago in Property Law
Religion: Hindu

4 answers received in 2 hours.

Lawyers are available now to answer your questions.

13 Answers

1. Since Khata transfer was effected by virtue of producing only NOC from the legal heirs, it's only a temporary measure and doesn't be taken up as if the signatories have relinquished their share in the property. In view of not executing either the Release Deed relinquishing their individual share or Gift Deed by other legal heirs in favour of your uncle, still the other legal heirs can stake claim to get their share in the property. Khata is only an account of property maintained by BBMP and does not certify the title to the property.

2.  However the claim is barred by limitation.

3.  Even though your grandfather died intestate and before the amendment to the Hindu Succession Act 1956, in 2005, it will not affect the claim of your mother and other legal heirs, since the property was your grandfather's self acquired property and not an ancestral property.

Shashidhar S. Sastry
Advocate, Bangalore
5624 Answers
339 Consultations

On grand father demise your grand mother , mother and her siblings have equal share in property 

 

2) your mother has not executed any relinquishment deed or gift deed for her share in property 

 

3) your mother can file suit for partition to claim her equal share in property 

 

4) it is not ancestral property and  2005 amendment is not applicable to your case 

Ajay Sethi
Advocate, Mumbai
99864 Answers
8148 Consultations

1. since the father of your mother died intestate, therefore, she can make a claim by filing a civil suit for the partition of the property,

2. approach a lawyer (online/offline) along with the relevant documents for a detailed discussion,

3. 

 

 

Suneel Moudgil
Advocate, Panipat
2386 Answers
6 Consultations

1) You can claim.

2) As your mother did not sign release / partition in his favour, she is entitled to share.  No time limit.

3) 2005 amendment is not applicable in your case since it is not ancestral property.

Further, as it is your GF's self acquired property, his wife, and children are entitled to equal share left by him.

Thus, your mother & your uncle are equal share holders in property i.e., half each.

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

1. Khatha is not a document of title. It is a revenue document relevant only for the collection of land revenueour .

2. If your mother has not executed a release deed then she may file a suit for declaration to declare the deed executed by your brother as void and non est and also seek partition of her share in the property.

3. The limitation is 3 years, but the suit should be filed immediately.

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

1. IF GrandFather (GF) died "intestate" (without making a WILL,  THEN all his residual Legal Heirs have EQUAL right /stake in GF's property/s, "without any exceptions", whatsoever .... irrespective of the fact that Khata was transferred to one single family member. Transfer of Khata on mere NOC is legally infructuous and is only for convenience purposes and does not transfer "Title Ownership", which can be done only thru a Sale /Gift /Release Deeds.

2. To stake claim the Legal Heir (or their assignee) have to file a Civil Suit for Partition of their relevant portions, supported with all documentary evidences and witnesses .... you can do so within 30 years of the intestate death (not advisable to wait)

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

1. You can claim share since the share is not relinquished.

2. For partition suit your mother can file it won't be barred by limitation .

3. Even before 2005 daughters had right in self acquired properties. In 2005 amendment act they got right in coparcenary property also.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Dear Sir,

Your mother entitled for a share since she has not executed any legal document foregoing her legal rights over her share. She can file partition suit and easily either get a share or get the compromise.

Kishan Dutt Kalaskar
Advocate, Bangalore
6230 Answers
499 Consultations

1. Khata is not a title document hence your mother can very well claim her legitimate share in her father's  property.

2. No time limit for filing partition suit

3. This is governed by the Indian succession act 1956 hence the amendment came into effect in the year 2005 has nothing to do with this, your mother is a legal heir to her deceased father hence she is very much entitled for her share out of her father's properties

She can file a partition suit if her brother is not agreeing for any amicable solution to this.

 

T Kalaiselvan
Advocate, Vellore
90066 Answers
2499 Consultations

Mother have half share in property. Without registered release deed, share in property do not transfer. Transfer of khata has no value.

File partition now before it barred by limitation. You mother has claim from the date of parents demise.

Yogendra Singh Rajawat
Advocate, Jaipur
23083 Answers
31 Consultations

You can try claiming it but noc may come in your way.

Actually for immovable property it's 12 years limitation. 

Now the amendment says daughter has right by birth

Prashant Nayak
Advocate, Mumbai
34577 Answers
249 Consultations

1. Since your mother already gave NOC for khata transfer so you can't claim the share from that property.

2. Yes claim has limitation of 10 years from date of transfer of khata no. 

3. Yes but as NOC was already provided to brother of your mother which means Your mother gave up her share from that property.

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

If your mother not relinquish her share then she can claim.

Your mother can claim her share by filing partition suit .

you are advised to contact a local lawyer and take legal assistance from him .

Mohammed Mujeeb
Advocate, Hyderabad
19339 Answers
32 Consultations

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer