• Muslim property partition

I have a question with regards to below thread

https://www.kaanoon.com/445949/ancestral-property

My late father has left one residential house and one commercial shop for all the legal heir, 3 brothers and 3 sisters. One of the brother has put a court case on the commercial shop that the property only belongs to him and no other brother and sister has no right on the commercial shop. The brother lost the case in 2019 and court ruled in favour of us that the property belong to all the brother and sisters. The brother has filed a appeal in the higher court challenging the order, the appeal is pending but there is no stay provided on the interim order. Now I have the following questions

1) The brother who has put a case on the commercial shop has passed away recently and the children of my brother are not ready to mutually divide the property. The children of my brother has illegal possession of the shop and they are not ready to willingly left over their possession. Do I have the option to put a application in court to appoint a local commissioner and do a partition of property by metes and bound while the appeal in higher court is pending ?

2) What are the other options available with me to make sure that brothers children should not take benefit from the commercial shop till the time partition is completed 

3) The residential house is undisputed and there is no case on that house, some of the brothers are ready to do partition however some are not willing to do partition as they have possession on the property. Should I prepare a affidavit to confirm who al is in favour of partition and who is not in favour of partition and then file a partition case for residential house as well or is there any other option available. Appreciate if anyone can share the format of the affidavit and let me know how much time these cases take to get a ruling in our favour

Appreciate if someone can provide separete response to each of the questions asked in this thread. Also please refer to the link provided above for more background on this case
Asked 2 months ago in Property Law
Religion: Muslim

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10 Answers

File suit for partition for division of house and shop by metes and bounds seek injunction restraining sale of shop by legal heirs of deceased brother and house by your siblings  . Also seek appointment of court receiver for the shop 

 

2) suit for partition take years to be disposed of 

 

3) it depends upon pendency of cases in trial court 

Ajay Sethi
Advocate, Mumbai
94700 Answers
7528 Consultations

5.0 on 5.0

1. You can no doubt file a final decree petition to inspect, divide and allot your share in the property by appointing an advocate commissioner.

However since there is an appeal pending before appellate court, you may wait for the disposal of the appeal. 

2. you can file a petition for injunction seeking to restrain them from doing any business and to divide the revenue or  mesne profits among all shareholders.

3. Once there is a suit for partition then it is advisable to include all the properties in it so that there can be no litigation in future against any property.

 

T Kalaiselvan
Advocate, Vellore
84896 Answers
2192 Consultations

5.0 on 5.0

If you want share in shop you have to file separate suit for partition for division of shop .if it cannot  be divided court would direct sale of shop 

Ajay Sethi
Advocate, Mumbai
94700 Answers
7528 Consultations

5.0 on 5.0

Yes partition suit will be applicable only after that court commissioner can be appointed for the above procedure. If you are party to any other partition suit in which same property is situated then you can pray the same in that suit without filing fresh suit 

Prashant Nayak
Advocate, Mumbai
31935 Answers
179 Consultations

4.1 on 5.0

1. It appears that the case filed by your brother seeking declaration of title on his name has been dismissed by court. 

However since there's no partition effected yet,  it is advisable that you file a suit for partition and separate possession of your legitimate share in the property. 

2. First you file the suit for partition,  let the court pass a preliminary decree,  which itself will take few years. after that you can file an application for final decree in which you can file an application for appointment of court commissioner to divide the property as per law. 

T Kalaiselvan
Advocate, Vellore
84896 Answers
2192 Consultations

5.0 on 5.0

1. There's no remedy for this other than filing a partition suit if even one of you don't agree for an amicable partition. Hence court is the place where you can get relief.

2. If all agree for mutual consent terms of partition by involving a third party referee, then a deed for partition on the agreed terms may be drawn and get it registered in order to get it legally valid.

3. The court procedure is that it will conduct the case and pass a judgement as per law.

T Kalaiselvan
Advocate, Vellore
84896 Answers
2192 Consultations

5.0 on 5.0

You have to file separate suit for partition 

 

2) seek expedited hearing as you are senior citizens 

 

3) there is no way to get third party involved 

Ajay Sethi
Advocate, Mumbai
94700 Answers
7528 Consultations

5.0 on 5.0

1. the appellate court will now decide whether the shop is the self acquired property of your late brother or it is the joint family property in which all the heirs of your late father have an undivided interest. Pending final decision on such appeal, a local commissioner cannot be appointed for dividing the property by metes and bounds. If the appellate court rules against the heirs of your late brother and confirms the decision of the trial court, then because the children of the late brother are in possession, you will have to file a separate suit seeking partition and separate possession. The brother's suit i believe only sought for a declaration that he is the owner of the shop. 

2. to prevent the heirs of the brother creating any third party interest in the meanwhile, you can file an interim application in the pending appeal for restraining the heirs from creating third party interest in the shop

3. as regards the house, all who are in favour of partition will have to jointly file a partition suit against the member who is refusing partition. An affidavit does not work for that. 

Please note that this forum is not for giving formats or for making predictions as regards how much time it will take for the court cases. 

Yusuf Rampurawala
Advocate, Mumbai
7510 Answers
79 Consultations

5.0 on 5.0

There is no other remedy if all are not consenting filing of suit is only remedy available 

Prashant Nayak
Advocate, Mumbai
31935 Answers
179 Consultations

4.1 on 5.0

1. Since, your father has died intestate , then this property would be devolved upon all his legal heirs equally and the legal heirs of your deceased brother has no right to occupy the same without the consent of other legal heirs.

- However, as per Muslim law, sisters share in the property is half of the son. 

- Hence, you can move an application before the court as you have mentioned , otherwise you should file a Partition suit before the court. 

2. You can seek share in the profit of his business as well 

3. Legally the consent of all the legal heirs needed for the settlement out of the court , and if any of the legal heir is not ready to partition , then any of the legal heir can file the Partition suit before the court.

Mohammed Shahzad
Advocate, Delhi
13211 Answers
198 Consultations

5.0 on 5.0

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