you are entitled to terminate the partition MOU as your brother has refused to share the cash and jewels as per the terms of the MOU. You are also entitled to construct a wall at the boundary of your partition to divide the building. However, if your brother has established possession over any of the shops in your partition, then he may be entitled to a stay order from the court restraining you from making any alterations to the premises.
Partition deed
My father had a house from his ancestors which is a G + 2 story building. After my father passed away me and my brother come to an agreement, did a partition deed by dividing the house in the basis of Metes and bounds instead of floor wise because the house is 40 years old and constructed only with columns and beams without proper foundation. Also the second floor was constructed without proper permissions. Due to the difference between me and my brother I was not interested to do partition with common area between us. So we entered into partition deed in dividing the land equally on the mete and bound basis and, entered into a separate partition MOU to mutually enjoy the house floor wise for few years until anyone decide to transfer or sell the partition so that the other party can start constructing the wall in between the partition to divide the building. As part of another MOU, he suppose to share the cash withdrawn from my father account and Jewels between us but he now refuse to give any share on the Jewels and Money though its agreed in another MOU. Also performing changes in the premises without any intimation.Therefore, I decide to terminate the partition MOU and decide to construct the wall at my boundary in between the building. I have provided the reason to the partition due to insecurity violating the premises and not sharing the cash. Now he is refusing to vacate the shops at my partition side. What can I do next and can he get a stay order to stop my partition procedure.
Asked 3 years ago in Property Law
Religion: Hindu
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13 Answers
Yes you need to move the civil court for injunction
Is deed of partition registered
partition for division of property by metes and bounds need’s registration
if brother is refusing to vacate shops on your side then file suit for eviction to direct brother to vacate premises
enclose copy of partition deed
1. File a partition suit against him immediately.
2. Thereafter file an application under Order 39 Rule 1 & 2 praying for an order restraining him in entering in to the said premises till the suit is disposed of/
File a regular suit for partition and separate possession. Include all properties in the suit movables and immovable giving details of all movables and immovable properties. He is bound to share everything. He can obtain stay against any construction by without a decree of partition. It is no clear whether the partition entered in to is registered or not. All proceedings can be conducted from u.k. through GPA.
In the given situation, if there was a partition deed by an unregistered deed, then it is not valid in law hence not enforceable.
However if the partition deed was a registered document, then you can file a suit to enforce the conditions therein by due process of law and to direct the defendant to vacate and handover the property falling into your share through court.
The partition deed is registered. The follow up MOU agreement to enjoy the building for few years at the floor level is not registered and which is the one we have sent notice to my brother to terminate so that we can proceed to construct the partition wall. As per the termination we provided 6 months notice to begin the partition at the end of 6 months so that he can make his preparation to make his own pathway preparation and as per the MOU after 6 months I will be able to begin the partition. I have intent to perform the partition unless he provide me a stay to not to perform. In case if he provide me an legal court ordered objection or a stay, I have also intend to approach the court to request to allow demolish the building due to the insecurity towards the foundation of the building and the unpermitted second floor construction which would be an overload to the foundation. Is that fine to go that way ? or What would be the suggestion
Asked 3 years ago
Yes you can do the same demolition will need orders from the court for the same after making out a case for demolition
If the MOU was not executed by a registered document then it cannot be enforceable.
Hence you my approach court with a suit seeking suitable relief by producing the MOU as a documentary evidence alone.
But The partition deed to divide the land based on metes and bounds is registered along. So I believe I am entitled to proceed to perform the partition?
Asked 3 years ago
If your brother is not performing his part of the partition deed, you may file a suit for enforcement of the registered partition deed under specific relief acts.
Yes you can do the same
Has construction on second floor being done by brother as per sanctioned plans
2) if construction is unauthorised you can seek demolition of unauthorised construction
3) it is necessary to peruse partition deed and MOU ti advice further
If partition deed is registered you can proceed with partition
Dear client,
Since you and your brother have already executed a partition deed dividing the land and entered into a separate MOU to mutually enjoy the house floor wise, you have the right to construct a wall at your boundary to divide the building. However, you must ensure that the partition deed and MOU are properly executed and registered as per the applicable laws.
Regarding your brother's refusal to vacate the shops at your partition side, you may send him a legal notice asking him to vacate the shops within a specified period of time. If he fails to vacate the shops, you may file a suit for eviction against him in the court having jurisdiction. In the suit, you may rely on the partition deed and MOU to establish your right to the property.
If your brother files a stay order to stop your partition procedure, you may contest the same by providing the court with the partition deed and MOU. However, it is advisable to consult a local lawyer who can guide you through the legal process and represent you in the court.
