Questions: A). Send a legal notice informing the potential issues of taking it to court and to have her agree that properties can be sold. She agrees that the property can be sold via her own lawyer. Is it ok to do this before we request the court to partition? B) Have a lawyer send a subsequent legal notice for partition, if she ignores option (A). (1) If she does not contest it, the court will partition based on the advice of property experts. (1 i) Once my sister receives the legal notice how many days should she respond to it? (1 ii) If she does not respond, how many days does it take for the court to appoint a property expert and partition the land accordingly? (1 iii) How will the property experts partition the residential properties? (2) If she does contest the partition: (2 i) What is the step by step legal process? (2 ii) How long will it take? (2 iii) What is the basis for her to contest the partition? (3) Can we sell our shares of the property without a partition & is there a legal ramifications? (4) Do we need to probate my mother’s will to avoid my sister contesting the will? (5) Do we need an inheritance certificate? Background: My father had a will. He died in September 2013 in Trivandrum. As per his will, his 4 Kerala properties will be willed to his wife and 3 NRI daughters. Everyone would own 1/4 share of each of his properties excluding 1 in Trivandrum where my mum resided. On her passing, 3 daughters will own it. 1 daughter is divorced with 2 children. 2 daughters are not married and have no children. All daughters are in their mid 50s. We sold 1 Kerala land property in 2014. My mother passed away in Dec 2021 in Coimbatore. She moved from Trivandrum to Coimbatore Apr 2020 to a newly acquired flat. It was jointly owned by her and a sister. My mum had a will registered in Coimbatore. As per her will, my mother’s share of the flat was given to 1 daughter (me). My sister and I sold the flat in Apr 2024. Mother’s share of the residential property in Varkala, Kerala would be given to her 2 grandchildren. Mother’s share of the residential property in Trivandrum will be given to her 3 children. The property in Kannur was allocated to her and 3 of us by court decree but never partitioned. Her share goes to her sister. My sister with 2 children does not want to sell any of the properties out of greed. The 2 residential properties are difficult to sell without her cooperation. None of us live in those properties nor have we ever lived in India except during college in Chennai. My sister, who is contesting, does not maintain the properties. We have enacted parts of our parents' will. Under my dad’s will, we sold a property in 2014. As per my mum’s will her bank deposits were liquidated and transferred to 3 of us. My sister did not protest the transfer nor has she taken legal action on the flat we sold.
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1) issue legal notice to sister for division of property by metes and bounds
2) if she refuses file suit for partition for division of properties by metes and bounds
3) partition suit seek over 10 years to be disposed of
4) probate is not mandatory in Kerala
5) you can if so you desire apply for probate of will
A) You can ask for partition or to sell the property jointly, if she is not agreeing for oral talks then you can issue a legal notice to this effect.
B) 1. After legal notice if there is no respond then you can approach court for a suit for partition, if she is not appearing before court to contest then she will be set exparte and the court will partition the property as per law.
1.i. if she is not responding within the time stipulated in the legal notice . then you can proceed as per law.
1.ii. If she is not responding then the court will conduct the case and pass a judgment as per law,.
1.iii. There are no such term called property experts, the court will pass a judgment partitioning the property in the manner as reported by the advocate commissioner appointed for this purpose. If the property is indivisible then the court may bring the property to auction sale and distribute the proceeds to the legal heirs of the deceased owner.
2.i. As explained above.
ii. Time taken by the court to disposed the civil suit cannot be predicted owing to various factors involved in it.
iii. It is for her to decide about contesting the case
3. You can sell your undivided share in the property without proper partition and the buyer can file a suit for partition and claim his share with separate possession provided the buyer is willing to buy the undivided share in the property.
4. Even in the probate of Will case she has to be impleaded as a respondent and the court after hearing both the sides, would pass a judgment and decree.
5. A legal heir ship certificate would be pertinent.
A) If she is not ready for partition then send a legal notice with the help of an Advocate
B) Notice should be send through a Lawyer
- Further , if there is no positive response from her then file a Partition suit before the Court.
- If she not contest the case then the Court may pass ex-parte decree of partition as per prayer in the case.
- You should wait 15 days for her reply of the legal notice.
- If there is no reply of the legal notice from her , then you can file the petition before the Court
- As per prayer clause of your filed petition the property would be partitioned and also depend upon the discretion of the Court.
- If she contest the case , then you will have to prove your case after producing evidence
- Time depend upon the burden of the Court , however if she contest the case then it may take 2 to 5 years.
- She will contest the case after engaging a lawyer
3. Yes, you can sell your share
4. Yes
5. Legal heir certificate
A) Sending a Legal Notice Before Requesting Court Partition
Yes, it is generally acceptable to send a legal notice informing your sister of the potential issues of taking the matter to court and suggesting that the properties be sold. If she agrees to sell the property through her own lawyer, this can be done before requesting the court to partition the property. This step can help avoid lengthy legal proceedings and reach an amicable solution.
B) Subsequent Legal Notice for Partition
If your sister ignores the initial legal notice, you can have a lawyer send a subsequent legal notice for partition. Here are the details for this process:
(1) If She Does Not Contest the Partition:
(2) If She Contests the Partition:
(3) Selling Shares Without Partition
You can sell your shares of the property without a formal partition, but this may lead to legal complications if your sister contests the sale.
(4) Probating Your Mother’s Will
Probating your mother’s will can help avoid disputes and ensure that her wishes are legally recognized. This process can provide a clear legal framework for the distribution of her assets.
(5) Inheritance Certificate
There is no concept of an inheritance certificate in India. You can get a Legal Heir certificate which establish a relation with the deceased.
Hope I have answered your query. Let me know if you need any clarification.
In Kerala, is an auction sale inevitable if the residential properties cannot be partitioned? Is providing a legal heir certificate compulsory in the partition case?
If property cannot be divided court would direct sale of property
not necessary to provide legal heir certificate
enclose the will of deceased parents
It is the common civil law applicable to entire country and Kerala cannot claim exclusion from the law.
many of the questions are posed as if the advocates are astrologers. So i will skip those.
query A - no such legal notice can be issued compelling her to sell
B - a legal notice for partition of the property can be issued
if it is not responded then you will have to file a partition suit
if you get buyers you can very well sell your undivided share in the properties. however that looks difficult as no buyer would be willing
if upon a partition decree being passed in the partition suit, the officer/court commissioner appointed by the court, opines that the properties are not partible, then they will be sold in public auction and the sale proceeds will be divided among the persons entitled thereto
it is not compulsory to probate the Will or obtain a legal heirship certificate
however for completion of title and from the perspective of buyers, you may have to apply for probate, if the willing buyers insist for the same
1. In Kerala, if residential properties cannot be partitioned amicably among the heirs, the court may order an auction sale as a last resort. However, this is not inevitable. The court typically prefers to explore all possible options for an equitable partition before resorting to an auction sale. If the property can be divided in a way that satisfies all parties, the court will usually opt for that solution.
2. Yes, providing a legal heir certificate is generally compulsory in partition cases. The legal heir certificate is used to establish the rightful heirs of the deceased and their respective shares in the property. You can get this certificate at your jurisdictional Tehsildar or revenue office.
- A legal heir certificate is not required , if you are going to file a Partition Suit before the Court.
- However, all the legal heirs should be added as party in the partition case, otherwise the passed decree will not be valid in the absence of any party left in the case.
- If she is not ready for partition of the property , then also any of the legal heir can file the partition case before the Court.
- Further, such property cannot be auctioned without the direction of the Court .
Dear Client,
Considering the issues related to the inheritance and properties among the siblings which raise several legal issues, the answer to your queries are as;
A] Legal Notice for Property Sale Agreement
You should write a legal notice to your sister stating the legal questions that may arise in the event that the matter is taken to the court and ask her to agree to the sale of the said properties. It would be better that she answer in writing through her legal counsel, which is allowed up to the time of filing a partition. This approach may aid in coming up with a friendly solution to legal problems and minimize an extended trial process.
In case your sister does not respond positively to the first notice you may go on to a legal notice for partition. Generally your sister should reply to the legal notice in 15 days of its receipt. In the event that she will not answer the complaint, the court can order an assessment of a property regarding division of the land. This process can take some time and normally takes several months to appoint an expert and finalize the partition according to the court’s attendance and the complexity of the case. Property experts will subdivide the residential properties in accordance with the legal papers, ownership ratios, as well as nature of the properties. They will also have to take into account the fair market value as well as the best interest of all the stakeholders.
If She Will Challenge the Partition
In the case where your sister disagrees on the partition, the steps normally followed is to present a suit In the civil court for the partition. The court will then issue the notices and the two parties will present their case to the court. The process may last from one to three years, depending on the case load of the court and the nature of the conflict. There can be possible reason that why your sister is likely resist the partition, she may say the partition should not be done or that she deserves a larger share due to her efforts or the properties do not have to be sold.
If you sell property shares without a proper partition then it may turn legal trouble like a conflict with your sister. In this case it is recommended to either get her permission or a court order so as not to encounter any problems. You should take the initiative and probate your mother’s will to avoid further complications and disagreements in case she will challenge the will. It may be necessary to produce an inheritance certificate to prove his/her right to the ownership of the properties especially where there is a dispute over the will or shares of the property.
Hope this advice helps in solving your query.
Please provide a fee for each of situation (a) writing a letter to my sister, (b) legal notice, but no partition, (c) partition? Email [deleted].
You can call any lawyer on this website in this regard
The fee structure for each and every work will be let known in detail as per the work entrusted or requirement by the lawyer who you would be engaging for the services.
Hence you may better choose a lawyer either from this forum or outside and enquire about such details.
1. Letter drafting, signing & stamping under my seal and postage cost - 4000
2. Legal Notice drafting, signing & stamping under my seal and postage cost - 5000
you need to calm down. when you complain of being insulted, have a look at your comment to me as well. I do not care about your ratings. I answered what was required to be answered. Despite that, I will again respond to some of your irrelevant queries. I cannot see what other lawyers have responded to your query and I am not even concerned. It is highly inappropriate of you of having make a generalised statement about lawyers. If you want respect, be respectful. Don't degrade lawyers in the manner you have sought to do in your remark left in my comment box. :
Questions:A). Send a legal notice informing the potential issues of taking it to court and to have her agree that properties can be sold. She agrees that the property can be sold via her own lawyer. Is it ok to do this before we request the court to partition?
As before stated you cannot compel your sister to sell her share. If she does not wish to sell her share, nobody can put a gun on her head. So this notice would not be appropriate. However you can have a letter addressed to her that it would be better if the properties are sold amicably, else the matter will have to go to the court, in a partition suit, which will take years to resolve. So try and convince her by saying that it would be in the fitness of things if the properties are sold mutually rather than lock the properties in legal dispute.
B) Have a lawyer send a subsequent legal notice for partition, if she ignores option (A).
Yes if she does not respond positively to the above letter, then you will have no option but to take legal steps by having a legal notice issued demanding partition of the properties.(1) If she does not contest it, the court will partition based on the advice of property experts.
(1 i) Once my sister receives the legal notice how many days should she respond to it?
there is no fixed time within which the notice has to be responded. Your lawyer will mention the notice period. Say 2 weeks or 4 weeks. Your sister is not even obligated to reply within that period. If she does not, then you will have to file a partition suit.(1 ii) If she does not respond, how many days does it take for the court to appoint a property expert and partition the land accordingly?
this is very difficult to say. You will first file the suit. Then summons will be issued to the defendant sister. Then she will enter appearance and file her defense or written statement. Then the Court will frame issues [points of differences between the parties]. Then the parties will have to lead evidence /testimony. Then there will be final hearing followed by a preliminary decree and then a final decree. After passing of a preliminary decree the court will appoint a court commissioner who will visit the subject properties and file a report in court whether or not the properties are partible. So it is extremely difficult to certainly say how much time all of this will take. And the Indian Courts are slow. I can even say that the entire thing will get done in 1 year. Will you then hold me to my words if there is any delay. That is why I said that such a query is akin to asking a query to some astrologer. Despite that to give you a ballpark estimate, you can consider a minimum of 5 years.(1 iii) How will the property experts partition the residential properties?
such properties are generally not partible. That is one cannot physically divide such properties to partition it. So generally such properties are sold in public auction and the sale proceeds are then divided among the parties according to their shares.(2) If she does contest the partition:
(2 i) What is the step by step legal process?
if your sister contests the partition suit then she will have to file her written statement and then all the steps i described above will happen(2 ii) How long will it take?
difficult to answer(2 iii) What is the basis for her to contest the partition?
this question does not make any sense. How can it be even predicted? she may come up with the case that the properties are not partible or that they are her own properties and the Plaintiff does not have any right in them. She can come up with any defense under the roof to contest the suit. So it is really not possible to precisely answer as to what will be her basis to contest the suit.(3) Can we sell our shares of the property without a partition & is there a legal ramifications?
you can sell your undivided share but the question is, would there be willing buyers? If all the sharers are consenting for the sale then there is no question of any partition.(4) Do we need to probate my mother’s will to avoid my sister contesting the will?
probate is not compulsory [ i say this on the strength of section 57 read with section 213 of the Indian Succession Act, 1925. However for all practical purposes if the Will is being set up then it should ideally be probated. If your sister contests the Will then she will have to forego any right that have been given to her under the Will. It would not make sense to contest a Will in which a person has been bequeathed something, unless the person claims that he or she is entitled to the entire thing and not a part of such thing that has been bequeathed under the Will.(5) Do we need an inheritance certificate?
if you follow the testamentary succession and have the Will probated then an inheritance or heirship certificate would not be required. An heirship certificate is generally applied for when there is intestate succession i.e. when the person dies without leaving any Will behind.If a Will is set up and it has been acted upon then intestate succession [case in which there is no Will] cannot be then set up.
- You can send the legal notice from anywhere with the help of a lawyer , but the case will be filed in the jurisdiction where the property is located.
- You can contact and discuss the matter before taking services.
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