Dear All, I have launched the Partition suit against my brother. Few properties fetch rents (Cumulative around 1.25 Laks). But unfortunately, we have mentioned rent income for only few properties. Even in the mentioned properties in the Partition suit, one of tenant (D4) was vacated and a new tenant came (In last time , Court said “IA 1/2022 - Counter of R1 to R3, R5. R4 not served, want of time. For Filing exoneration Petition for R4 call on [deleted]. Counter by then. OS xxx/2022 - Written Statement of D1 to D3, D5. D4 not served, want of time. D4 Postal cover returned as address moved. For Filing exoneration Petition for D4 at request call on [deleted]. Written Statement of D1 to D3, D5 by then” ) . It is very difficult to follow up and update the tenant details. A lot of small (3000/4000 INR) tenants are not mentioned in the Partition suit due non-availability of data and almost all of them pay rent as cash. We have not requested to pay all rents to the court. Currently, he is occupying the entire house (TWO storey building) and he is running business also in the house land. The house in the father name. My question 1. I want to stop his stay at the house or can I claim rent for that or can I claim 1 storey and give it to rent or any other option Note: I don’t have a house in my name and am staying far away from the property. My husband has house in his name. 2. How to stop the all rents? Note: He is getting all rents and enjoying the property. He is not bothered about the case. 3. Can We ask our lawyer for amendment to pay the rent to court? If yes. How to mention in the amendment to pay all rent including the rent paying as cash. 4. If I go amendment, will this lead to a delay? Or will it be better to go for the amendment now ? 5. Any other opinion / Advise/ Guidance?
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You cannot stop brother stay at house nor claim rent for his occupancy
2) you can seek orders to direct brother to file affidavit disclosing rents received for various properties and fior orders to deposit rentals in court
3) you can seek appointment of court receiver for various properties mentioned in partition suit
4) if these reliefs have not been sought in suit then make application for amendment of plaint
5) it will result in some delay in disposal of suit
Tenants are not required to be party in partition suit. Suit of partition to be filed among legal heirs entitled to have share in the property of deceased hence since tenant are not legal heirs. Only an IA was required seeking direction of deposit of collected rent in assigned bank account or in court. Suit are to be filed in court and such suit cannot be launched.
1. Since suit is already pending and further as your hutitle has not been decided nor your share have been defined hence you cannot stop stay in properties.
2. Donot let out the Premises to any tenant further.
3. & 4. File IA seeking direction for deposit of rent in court or in assigned bank account. No delay eould be cause. In case of amendment delay would be caused.
Stopping your brother's stay in the house or claiming rent for it: Depending on the specific laws and circumstances in your jurisdiction, you may have options to seek possession of the property or claim a share of the rent. Your attorney can advise you on the available legal remedies, such as filing an application for temporary injunction or seeking an interim order to restrict your brother's use of the property. Additionally, you may be able to claim your share of the rent for the portion of the property that you are entitled to as per the partition suit.
Stopping all rents: If you wish to stop your brother from receiving the rents, you may need to take appropriate legal action. This may involve seeking an order from the court to direct the tenants to pay the rent to the court or to a specified party until the partition suit is resolved. Your attorney can guide you on the necessary steps to take in this regard.
Amendment to pay rent to court: You can discuss with your lawyer the possibility of seeking an amendment to the partition suit to include a request for the tenants to pay the rent to the court. They will be able to advise you on the procedure for making such an amendment and how to mention the rent paid in cash.
Amendment and potential delay: Seeking an amendment to the partition suit may result in some delay, as it will require additional court proceedings. However, this can be a strategic decision based on the circumstances of your case. Your attorney can help you weigh the pros and cons and determine the best course of action.
1. You cannot evict him form the house because he is also entitled to a share in that house.
2. If the rental amount is not shared then you can claim a share in the mesne profits out of the rental income of this property.
3. You can file a petition before court either for sharing the rental income to you or to deposit the same before court as deposit till disposal of the suit.
4. The process of amendment will delay the process to a great extent.
5. You may discuss with your advocate on the practical issues based on the prevailing situation and take wise decisions as necessary
You can seek stay and also can claim rent
By injunction you can stop
yes amendment can be done
no it will not be delay
1. As per law, after the demise of your father intestate , his property would be devolved upon all his legal heirs equally , and hence your said brother cannot grab entire property and the rent from the same
- If you have filed a Partition suit with the Mandatory & Permanent Injunction ,and share in the rent , then he can be restrained from getting rent from the tenants without sharing the same with you.
2. Move an application in the same court for depositing the rent in the court till the finalization of the case.
3. Yes, you can move an amendment application before the same court for allowing the amend the petition.
4. If no reply/WS has been filed by the respondents then the amendment will delay the proceeding
In the Partition suit, we are not claimed to deposit of rent in the court Can I file IA now for the points below simultaneously? Will it affect or delay the main Partition suit ? 1/Seeking direction for deposit of rent in court and 2/Seeking an interim order to restrict my brother's use of the property Please help me with how to proceed further.
it would delay the partition suit if you amend the plaint for deposit of rentals in suit
you can seek interim order restraining selling of property but cannot restrain brother from using the property
Yes, you may very well file IAs seeking interim orders:
1. directing the tenants to deposit the rents in court.
2. restraining your brother from dealing with the property in any manner including fixing up new tenancies, receiving or returning rental deposits.
Your interim applications will in no way affect your main suit for partition.
You can file a petition for the first relief but the petition for second relief is not maintainable.
In any case, this process will certainly delay the progress of main case.
If property is already mentioned in partition suit then file an application under order 39 rule 10 cpc read with section 151 cpc seeking direction that the rent which property mentioned in partition suit is fetching be deposited in court. As such you cannot restrict the use of property by your brother, however, you can pray to court to restrain brother from alienating the properties.
Yes you can do the aforesaid
1. You can move this application in the same court
2. Since, he is already residing there , then the court will not pass order for his eviction , however you can move an Injunction application for restraining him from selling or renting any part of the property
In a partition suit, where you have not previously claimed the deposit of rent in court, you may consider filing an Interlocutory Application (IA) to seek direction for the deposit of rent and an interim order to restrict your brother's use of the property. However, it is important to consult with a lawyer who specializes in property law to get accurate advice based on the specific laws and procedures applicable to your jurisdiction.
Here are some general steps you may consider:
Consult with a lawyer: Engage a lawyer who specializes in property law and has experience with partition suits. They will be able to guide you through the legal process, assess the merits of your case, and advise you on the appropriate steps to take.
Draft the Interlocutory Application (IA): Work with your lawyer to prepare the IA, which should clearly state the relief you are seeking, such as the direction for the deposit of rent in court and the interim order to restrict your brother's use of the property. The IA should provide supporting arguments and relevant legal provisions.
File the IA in court: Once the IA is drafted, it needs to be filed in the appropriate court. Your lawyer will assist you with the necessary paperwork and ensure that the IA is filed within the prescribed timelines and procedures.
Serve notice to the other parties: After filing the IA, notice needs to be served to the other parties involved in the partition suit, informing them about the IA and the hearing date. Your lawyer will guide you on the proper service of notice as per the applicable rules and regulations.
Attend the hearing: On the scheduled hearing date, you and your lawyer should be present in court to present your case and arguments. The court will consider the IA and may issue appropriate directions or interim orders based on the merits of the case.