We are based in Kerala and from Christian family. Our grand parents had split property between sons as below. Eldest son (deceased) and his family were given their share of land and rest of land and house were given to second and third son as joint owners as per his will. Our father is second son in this case. Third son settled in US decades ago and gave power of attorney to our father to manage all aspects of property including taking care of our grand mother. Another vital info here is Eldest son passed away early while our grand parents were alive and our grand father allowed eldest son's family to stay in the house which was actually given to our father and his younger brother. Although they had been given their share of land in advance, Eldest son's widow and son never built house on their own even after our father had given court notice to leave the house. We think our father allowed them to stay on basis of good will. Our father took care of land and property as he was in India. Our father passed away 13 years ago. About 18 months back, Our uncle from US came to India and gave his ownership of land and house, which was in joint ownership with us, as gift deed to eldest uncle's Son without consulting or informing us. So now, ownership of house and land is between eldest uncle's Son and us. Can we legally challenge this transfer of ownership without partition? Another issue is, Eldest uncle's son forcefully started to use rubber plantation that is included in the property is financially gaining from rubber extractions without informing us for the past 18 months. How can we stop this ? or a partition suit required to stop this use of land and property for his sole benefit? Also, he has now locked the house and is not sharing key to the house. After repeatedly asking for key he has not responded. Could we break lock and get access to the house? as we also own equally the house?
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You cannot challenge transfer of share of uncle by gift deed
2) even if you do so you may not succeed
3) file suit for partition for division of property by metes and bonds
4) seek injunction restraining sale of property by uncles family
5) you are entitled to stay in said house as you are co owners of house
Your father's younger brother can transfer his undivided share in the property to his nephew, there's no illegality in it.
You can file a suit for partition and also claim for a share in the mesne profits in the land till disposal of main suit.
As per your grandfather's Will, your uncle and your father were the joint legatees of the land and house property. As such, each had only equal undivided share in the whole. In the light of these facts, your uncle could transfer only his undivided share, and not any specific one. You need to file a suit at the district court against your uncle and the elder uncle's son by engaging a competent advocate seeking to set aside this illegal transfer, after issuing them due notice. File an interim application (IA) for an order of injunction restraining your elder uncle's son from dealing with the property in whatever manner till the disposal of the suit.
These cases are very common in various Courts of India and Supreme Court of India. I can understand your concern in this regard. All legal action can only be taken once legal notice through Advocate has been served upon the entity or individual you wish to take to court. It is this process that legalises bringing a matter to court. The intimation sent is known as a legal draft. A legal notice is, therefore, a formal communication to a person or an entity, informing the other party of your intention to undertake legal proceedings against them. This notice, when sent, conveys your intention before the legal proceedings and thus, makes the party aware of your grievance. Many times, a legal notice served will bring the other party to heel, and the problem is often resolved out of court, well before it goes to trial, with fruitful discussions on both sides.
However, if the other party is still unheeding the grievance, one can always start the court proceedings after the prescribed interval as stated by law. The bottom line is that legal notice can serve as a point of reference to embark upon negotiations between two parties and save both the time, effort, and money that is usually spent in court cases.
The laws regarding joint ownership of property are specifically rooted with Section 44 of the Transfer of Property Act, 1882. The joint owners of a property enjoy mutual rights unless someone is restricted from enjoying certain aspects of common ownership of property in terms of possession, use, etc. Problems with joint ownership of property mainly arise in case of a dispute among joint owners. Transfer of ownership can be challenged (if you are able to prove something adverse against the other side). The actual owner can file a civil lawsuit for declaration and possession. The Court may declare him the owner and pass the possession of the property to him (if required). In partition suit, this prayer can be added.
To stop your eldest uncle's son, injunction order is to be obtained. An injunction is a remedy granted by the court that prohibits the commission of a wrong threatened or the continuance of a wrongful course of action already begun. Since you are having several issues therefore, it is better to first issue one legal notice taking all the grievances into consideration and thereafter file appropriate case (if required). Detailed discussion is required in such cases with complete documents.
You may contact my secretary to connect with me for clarification.
Gopal Verma
Advocate on Record & Amicus Curiae
Supreme Court of India
- Since, your father was having equal share in the property with your uncle , then he cannot execute a gift deed of undivided share .
- You can claim fathers half share in the joint property after filing a suit for partition and declaration before the court for declaring the gift deed as invalid and to give half share to the legal heirs of your father.
- Further, you can claim half of the profit on the said plantation being the sharer of that land.
- Hence, you can file the suit for partition , declaration and Mandatory & Permanent Injunction before the court for getting share in the land, for declaring invalid that gift deed , for getting profit of plantation and to allow you to use that house .
- You cannot take law of the land in your hand after breaking the lock , without court direction.
In your situation, it appears that your father and his younger brother were given joint ownership of the land and house by your grand parents through a will. As joint owners, both your father and his younger brother would have had equal rights and interests in the property. However, your uncle from the US transferred his ownership share to the eldest uncle's son through a gift deed without consulting or informing you.
To challenge the transfer of ownership, you may need to consult with a lawyer who specializes in property law in Kerala. They can examine the specific details of the case, review the relevant laws and documentation, and provide you with advice on the available legal options. It may be possible to challenge the transfer on the grounds of lack of consent or proper legal procedures, especially if your uncle did not have the authority to transfer his ownership share without your consent.
Regarding the forceful use of the rubber plantation and the denial of access to the house, it is advisable to consult with a lawyer to understand your rights and the legal remedies available to you. A partition suit may be an option to consider, as it can help in dividing the property and establishing each party's share and rights. The court can also issue orders to stop the unauthorized use of the property or grant you access to the house.
Breaking the lock to gain access to the house without a court order may not be legally advisable. It is best to consult with a lawyer to understand the appropriate legal steps to take to regain access to the house and protect your rights.
You can send him legal notice and file for injunction against them
