Unless a father's Will or original title deeds explicitly gave exclusive terrace rights to a specific floor (e.g., specifying that the second floor includes roof/terrace rights), the open terrace is legally treated as an undivided common area for all floor owners.

The law of equity states that if a person stands by and knowingly lets another person construct structures, spend money, and occupy space without protest for a long time, they cannot later demand demolition or partition.

Since you have openly, continuously, and exclusively built upon and possessed the roof space since 2008–2009 (exceeding 12 years) without permission or rent to the co-owners, your title over that specific built portion has matured through adverse possession. Her right to challenge your physical possession of those built-up areas is extinguished by law.

In many urban property arrangements, the owner who owns the topmost built-up floor implicitly holds the practical access and roof rights of that top ceiling, subject to providing utility access (water tanks) to lower floors.

If the first floor has not even been legally transferred/mutated into her name via a registered gift deed, probate of a Will, or relinquishment deed, she lacks full legal standing (locus standi) to institute a suit for property partition.

Ensure that the lower floor owners still have unhindered physical access to reach their respective water tanks on the roof. Fulfilling this basic easement obligation makes it nearly impossible for her to win a claim of hardship or denial of rights in court.

If the area comes her rightful share then she can claim it unless a common area used by both parties equally and mutually 

Terrace forms part of common area for benefit of all floor owners 

You can only claim complete, exclusive legal ownership of the open terrace area if your father explicitly gave you the terrace rights in a registered Will, Gift Deed, or Settlement Deed, or if your sisters signed a Relinquishment Deed giving up their shares in it.

2) The Water Tanks: Even if the terrace were private, you cannot block access to essential common utilities. Moving the water tanks to the very top was necessary, but your sisters still retain the right to access the roof to maintain their specific water tanks. [

3) building a full bedroom/bathroom on top of the final sanctioned floor or converting a mumti (which is meant strictly to cover a staircase) into a living/working space is considered an unauthorised construction unless it was explicitly approved in the building's structural plan.

4) courts in India are highly reluctant to grant adverse possession against family members (co-heirs). The law usually presumes that one sibling occupying a property is doing so with the implied permission of the others, not hostilely against them

Madam, 

It is suggestged that even though nothing was objected by your other sisters, the rights belongs to them also in absence of express writing by your father. it is also suggested that solution to many problems does not lie in the legal complications and many problems can be solved by mutual understandings and discussions giving accomodation of thoughts of all concerned persons. So, if possible, kindly indulge in healthy discussion and resolution with the aim to come at mutual beneficial settlements acceptable to all but not hampering your substantive rights. It is also to be kept in mind that if the water tanks are kept at 3rd floor now, all the occupants of the house/flats at all flours have natural rights for limited purpose of access to 3rd floor for the purpose of inspection of water tanks and its repair. This natural rights can not be hampered even if the express rights of 3rd floor is given to some specific owner. Please don't understand that this advice is negative for you, rather it is for making you aware and sincere advice so that unnecessary hurdles may be avoided. 

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  Doctrine of Acquiescence: This equitable rule states that if a person stands by passively while their legal rights are being infringed upon, their silence implies consent. Your sisters had full knowledge of your construction between 2008 and 2009. By staying silent for 17 years while you spent your labor and capital extending the built-up area, they are legally barred from suddenly demanding a division of that space.
  
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  Adverse Possession / Efflux of Time: Under the Limitation Act, 1963, the timeframe to challenge hostile possession or seek recovery of an immovable property is 12 years. Because your exclusive possession and construction have been open, continuous, and uninterrupted for 17 years, your rights over the built-up portions have significantly matured, and their window to legally object has expired. 
  

Dear Client,

The sister may still ask for partition or a declaration regarding the terrace if she is able to establish a legal or beneficial share in it. However, 17 years of uninterrupted, open use with the knowledge and acquiescence of the other co-owners is strong evidence in your case. particularly regarding permission, consent, waiver etc. Nevertheless, only long possession generally does not automatically create ownership against other co-owners, as possession is presumed to be permissive unless clear ouster is proved. Terrace rights may depend on your father’s Will, title documents, sanctioned building plan, municipal records, and any other family arrangement made. A terrace is not by itself owned exclusively by the top-floor occupant and it may be a common area unless legally stated. You may preserve evidence of construction expenses, utility bills, photographs, tax records and evidence of the sisters’ knowledge. You are advised to consult a local lawyer with all relevant details.

Thank you for contacting us, if you have any further queries kindly do not hesitate to contact again. Thankyou.

No such attached note found 

it is better you seek phone consultation with any lawyer on this website for clarification of your doubts 

A Right Thumb Impression (RTI) is legally permissible as a mark/signature under Section 63 of the Indian Succession Act, 1925. However, whether your deceased father's note will be admissible in court depends heavily on its execution, attestation, and the surrounding circumstances.

Section 63(a) allows a testator to sign or affix their mark (such as a thumb impression). Physical incapacity (e.g., Parkinson's) justifies replacing a signature with an RTI.

Section 63(c) mandates that a Will or codicil must be signed/marked in the presence of at least two attesting witnesses who also sign the document.

The court requires proof that the testator possessed a sound disposing state of mind and understood the contents of the document despite physical illness

Under Section 68 of the Indian Evidence Act, at least one attesting witness must be examined in court to prove the execution of the document containing the thumb impression.

Even if the note is challenged, your 17-year uninterrupted maintenance, physical creation of the floor, and providing alternative outer access for essential facilities (water tanks/dish TV) strengthen your equitable possessory claims.

Check if the note contains signatures, names, and contact details of two witnesses who were present when your father affixed his RTI.

Engage a probate and property lawyer to evaluate if the note qualifies as a Codicil or if your claim to exclusive terrace ownership can be asserted through construction/easement rights alongside the original Will.

Madam,

After reading your detailed query in follow-up query and from previous query also, it is suggested that since there was no third floor in existence that time, nothing is mentioned in the WILL. However, after construction of second floor, the issue has arisen. Also, due to security reasons, you have constructed the stairway from inside area under your possession. In all these circumstances, the best method is always to sit, discuss and come with a solution/resolution mutually acceptable to all occupants. Do give your suggestions and protect your all privacy and other rights which are inherent/natural for you. it is sure that mutually acceptable solution will be arrived at.  

Dear Client,

Your father’s note and his thumb impression may be admissible as supporting evidence, but it may not by itself make you the exclusive owner of the terrace. The evidentiary value will depend on whether your father was mentally capable of understanding the document, when it was being made, aware of its contents, and whether there were any present witnesses. As the terrace was not there when the original Will was made, the note may help to determine your father’s later intention, but it may not operate as a valid Will. Your continuous and uninterrupted use for 17 years, construction and maintenance of the terrace, maintenance of all water tanks, knowledge of other sisters and lack of any substantial objection may strengthen your case. You are advised to consult a local lawyer before taking any further legal steps.

Thank you for contacting us, if you have any further queries kindly do not hesitate to contact again. Thankyou.

On the facts stated by you, there are two separate questions: first, whether the other sisters can presently claim a share/access in the terrace after approximately 17 years of uninterrupted use; and second, whether the separate note bearing your father's thumb impression/RTI impression can establish that he intended the terrace to belong exclusively to you.

The second issue is particularly important. A thumb impression is not, by itself, invalid merely because it is not a conventional signature. Section 63(a) of the Indian Succession Act expressly permits a testator to “sign or affix his mark” to a Will. The Supreme Court has also recognised that the statutory requirement is concerned with the testator's signature/mark and the intention behind it. Therefore, if your father personally affixed his thumb impression to the document, understood its contents and intended that document to record his testamentary wishes, the thumb impression can legally be relevant.

However, the crucial difficulty is not the thumb impression—it is the legal character of the note. If the original Will does not deal with the terrace because the terrace/floor was not yet in existence, a later informal note saying that your father intended to give the terrace exclusively to you does not automatically operate as a Will or codicil. For a later writing to operate testamentarily, the requirements applicable to a Will/codicil have to be satisfied, including the statutory execution and attestation requirements. Section 70 also requires a writing intended to alter/revoke a Will to be executed in the manner prescribed for an unprivileged Will.

Consequently, if your note bears only your father's thumb impression but does not have the signatures/attestation of two witnesses who witnessed the thumb impression or received his acknowledgment of it, I would not advise treating it as a standalone Will/codicil creating an exclusive testamentary right in the terrace. It can nevertheless potentially be valuable as corroborative evidence of your father's intention, particularly when read with the original Will, the physical development of the property during his lifetime, your father's conduct, your continuous occupation and the family's knowledge of the arrangement. The court would ultimately have to determine what evidentiary weight to give it.

There is another important aspect in your favour. Your possession of the terrace has apparently not been secretive or recent. You state that from around 2008–09 until now you have openly used the terrace, constructed/used the room and bathroom, maintained the water tanks, built the mumti/access arrangement and used the terrace for gardening and other purposes, all while your father was alive initially and thereafter with the knowledge of the other daughters. Their 17-year silence is therefore relevant evidence of the historical arrangement and acquiescence. However, 17 years of silence does not automatically convert common property into your exclusive property, nor does limitation by itself necessarily extinguish another co-owner's title. In a co-ownership situation, the Supreme Court has repeatedly held that possession of one co-owner is ordinarily treated as possession on behalf of all, and a plea of ouster requires clear evidence of hostile title, exclusive possession and knowledge of that hostile assertion.

This distinction is important because the younger sister may argue that the terrace is a common area/roof appurtenant to the respective floors, particularly if the title documents do not expressly confer exclusive terrace rights. On the other hand, Delhi cases also demonstrate that terrace rights can be dealt with specifically by title documents; the question therefore turns substantially on the original title documents, the Will, sanctioned building plan, floor-wise rights and the precise manner in which the property was divided by your father. For example, the Delhi High Court has dealt with disputes where the title documents expressly conveyed exclusive terrace rights along with a particular floor.

Your case is therefore not simply a case of “I have used it for 17 years, therefore it is mine.” Your stronger case would be that there was a family arrangement/testamentary intention under which the second-floor/barsati portion and the subsequently developed terrace were intended for your exclusive enjoyment, that the construction/development took place openly while your father was alive, that the other beneficiaries knew of it and never objected, and that your father subsequently recorded or confirmed his intention in the disputed note.

The fact that the terrace was not separately constructed when the original Will was made also needs careful examination. If your father remained the owner of the entire property and the terrace was subsequently developed during his lifetime, his later intention concerning that newly existing portion could potentially be relevant. But if the later construction legally became part of a common roof/terrace attached to multiple separately owned floors, your father's unilateral intention may not be sufficient to create an exclusive proprietary right contrary to the underlying title documents.

I would therefore not advise you to rely solely on the 17-year delay or the RTI/thumb-impression note. Your defence should be built from the complete chain of documents: the original title deed of your father, the original Will, the disputed note in original form, proof of when the second floor was constructed/completed, sanctioned plan/regularisation documents, electricity/water records, municipal records, photographs, construction expenses, evidence of maintenance of the six tanks, correspondence between the sisters, and any document or communication showing that the other sisters accepted your exclusive use.

The original note is particularly important. If you have it, I would want to examine its exact wording, date, whether it specifically identifies the terrace, whether your father states that it is his wish or an actual bequest, whether two witnesses signed it, whether anyone identified/attested his thumb impression, whether it was prepared by a lawyer/document writer, and whether there is any medical or other evidence demonstrating that despite Parkinson's disease your father understood the document and voluntarily affixed his mark. Parkinson's disease by itself does not establish testamentary incapacity; the real question would be his mental capacity and understanding at the time of execution.

Accordingly, my preliminary view is that the thumb impression can be legally admissible and relevant, but its admissibility is different from its sufficiency to establish an exclusive testamentary disposition. If properly executed and attested, it may potentially operate as a testamentary document; if not, it may still be useful corroborative evidence but cannot safely be treated as equivalent to a duly executed Will/codicil.

If you upload the original Will and the separate note bearing your father's RTI/thumb impression, I can examine the exact language and execution/attestation and tell you specifically whether the note can be pleaded as a Will, codicil, subsequent testamentary declaration, family arrangement, or merely corroborative evidence of your father's intention. That distinction could materially affect how you respond to your sister's threatened claim.

For detailed legal advise you may connect on https://share.google/jCbuYXivLzFBy0dSK

1. Can the first-floor nominee force division of the terrace after 17 years of silence? Yes, a co-owner can file a suit for partition, as there is generally no limitation period for seeking partition of joint property. However, her claim is significantly weakened by her 17-year silence and acquiescence. Courts have held that where constructions by one co-sharer are allowed to remain unchallenged for a long time, the consent of the other co-sharers may be implied. Your exclusive, open, and continuous use of the terrace, combined with their passive acceptance, creates a strong equitable defence against her belated claim.

2. Is the long silence a tenable objection? Yes, the principle of acquiescence is a very tenable and powerful defence. Acquiescence implies that a person, having knowledge of their rights, stood by while another dealt with the property in a manner inconsistent with those rights, leading the other to believe they consented. Your sisters and their husbands had full knowledge of your construction and use of the terrace for 17 years without any murmur or protest. Their silence and inaction induced a reasonable belief that they consented to your exclusive enjoyment, making it inequitable for them to now object.

3. What legal relief is available due to the long time elapsed? You have two strong legal grounds for relief. First, adverse possession: while possession of a co-owner is generally presumed to be on behalf of all, it becomes adverse if there is an open assertion of a hostile title and ouster to the knowledge of the other co-owners. Your open, exclusive, and uninterrupted possession for over 17 years, coupled with their knowledge and inaction, may constitute ouster, and the 12-year limitation period under Article 65 of the Limitation Act may have extinguished their rights. Second, easement by prescription: under Section 15 of the Indian Easements Act, 1882, peaceful, open, and uninterrupted enjoyment of a right for 20 years can vest a prescriptive easement. You have been using the terrace for 17 years; the period is close, and you may need to demonstrate continuous enjoyment.

4. Is the thumb impression on the will admissible? Yes, a thumb impression on a will is admissible and legally valid, especially when the testator cannot sign due to illness. Section 63 of the Indian Succession Act, 1925 requires the testator to sign or affix their mark, and a thumb impression qualifies as a valid mark. The Bombay High Court has specifically upheld a will bearing a thumb impression where the testator suffered from Parkinson's disease and could not sign. However, the will must be attested by two or more witnesses who saw the testator affix the mark. To strengthen its validity, you should be prepared to provide medical evidence and witness testimony to dispel any suspicious circumstances.

If it doesn’t mention then the matter becomes disputed and needs court interference 

The handwritten/RTI-impression note is important, but I would not give the client a categorical answer on its admissibility without seeing the actual note. The document's date, wording, attestation, witnesses and surrounding circumstances will matter considerably.

On the facts stated, there are actually two separate issues: the legal right to the terrace, and the evidentiary value of the father's later note.

Terrace rights

The fact that the other sisters have remained silent for about 17 years is useful evidence, particularly when coupled with your client's exclusive possession and use, construction at her expense, maintenance of the tanks, construction of the mumti/access arrangements, and the knowledge of the other co-owners. But 17 years of silence does not automatically create exclusive title to a terrace which, under the title documents and applicable law, is otherwise a common area.

Similarly, the fact that the tanks of all floors are located there does not necessarily give every floor owner a right to possess or use the entire terrace. What matters first is the original title, the Will, sanctioned building plan, municipal records and the manner in which the different floors were bequeathed/transferred.

There is also an important factual distinction here: the terrace was apparently not the same physical/constructed area when the Will was made, and the second-floor/barsati was subsequently completed while your father was alive. That makes the father's intention regarding the subsequently-created terrace particularly relevant.

The father's RTI-impression note

A document bearing your father's thumb impression is not automatically inadmissible merely because he could not sign. A thumb impression can constitute execution if the person is proved to have affixed it to the document voluntarily and with knowledge of its contents.

But there is a more important question: what exactly is this document?

If it is intended to operate as a Will or codicil, the requirements of Section 63 of the Indian Succession Act, 1925 become important, including attestation by two witnesses. A document simply bearing the father's thumb impression, without the required attestation, may not be capable of being proved as a Will merely because it records his intention.

If, on the other hand, it is being relied upon as evidence of his intention, acknowledgment of possession, permission, family arrangement or conduct, its evidentiary relevance may be different. It cannot necessarily transfer title by itself, but it may become an important piece of evidence when read with the subsequent 17 years of conduct.

The fact that your father was suffering from Parkinson's also does not by itself invalidate a document. The crucial questions would be whether he understood the nature and effect of what he was doing at the relevant time and whether the document was voluntarily executed. If his capacity is likely to be challenged, medical records and the circumstances in which the document was prepared may become important.

So, please upload the actual note. I would specifically want to see its wording, date, thumb impression, witnesses/attestation and whether it describes the terrace as being given to you or merely records his intention. That document could materially change the assessment.

The prospective client should therefore not proceed on the assumption that “17 years' silence = ownership.” The stronger argument is likely to be the combination of the father's intention, the history of exclusive possession/use, the construction carried out, the knowledge and acquiescence of the other sisters, and the actual legal character of the terrace under the title documents.

The interplay between an unexecuted estate, missing construction approvals, and non-cooperative co-owners creates a stalemate. However, leaving this unresolved only compounds the legal risk for the next generation.Upon your father's intestate death all the legal heirs succeed to the estates left  behind by him. 

You do not need a sanctioned plan to get ownership mutated; conversely, municipal authorities usually will not regularise a structure (like the 2nd floor terrace) unless the applicant has a clear, mutated title or authorization from co-owners/co-lessees.

Ground leases granted by authorities (such as DDA, L&DO, or municipal corporations) are renewable or convertible to freehold upon payment of conversion charges. However, lessor authorities generally require a clear chain of title and clean building plans free of unauthorized construction before allowing freehold conversion.

Since asking for an NOC directly from the first-floor owner risks triggering an immediate dispute over terrace rights, consider these approaches depending on your willingness to negotiate or seek legal intervention:To get the NOC from the first-floor owner, you may need to clearly define terrace usage in writing.

If the first-floor owner refuses to grant an NOC or attempts to claim rights she is not legally entitled to, relying on informal status quo will eventually stall, you may file a suit for partition with clear details and seek the desired reliefs. . 

Enter into registered deed of family settlement to resolve all disputes .you cannot claim exclusive ownership of terrace as father has not executed any will bequeathing terrace to you 

Your additional facts make it clear that the dispute is not merely about access to the terrace. The underlying difficulty is that the respective floors were never formally transferred or regularised in the individual owners’ names, and the legal effect of the Will itself may need to be established.

The absence of a sanctioned plan for the completed second floor is a separate issue from ownership. Seventeen years of construction, occupation and use without objection may help establish the history of possession and the other sisters’ knowledge and conduct, but it does not automatically regularise the construction or confer exclusive title to the terrace.

Similarly, if the Will does not specifically deal with the subsequently constructed terrace, the question cannot be resolved merely by saying that the terrace did not exist when the Will was made. The legal position will depend on the Will’s actual terms, the title to the underlying property, the nature of the rights given to each daughter, and the legal character of the terrace under the applicable property law.

I would not recommend treating the first-floor owner's refusal to give an NOC as automatically decisive. Equally, you should not assume that the other owners' silence has permanently extinguished any rights they may have in the terrace. The father's handwritten note bearing his thumb impression may be particularly relevant, but its legal effect will depend on its wording, execution and whether it satisfies the requirements for the purpose for which it is relied upon.

The practical way forward is to separate three questions: (1) who legally inherited or acquired title to the property and the respective floors; (2) whether the terrace is common property or whether an enforceable exclusive right was created in your favour; and (3) what approvals or regularisation are required for the existing construction and transfer of the floors. These questions should be examined together before deciding whether to pursue a declaration of rights, partition, or another remedy.

The fact that the property is held under a perpetual lease also needs to be checked against the actual lease deed. The reference to a 99-year term does not, without examining the deed and commencement date, establish that the lease is about to expire or that the family's rights will automatically end.

The most important documents are the original lease deed/title documents, the complete Will, your father's handwritten note, available municipal/building records and evidence of the construction and long-standing use of the terrace. Without examining these, it would be premature to conclude either that you have an exclusive terrace right or that the other sister can compel division.

You need to take legal steps for his Noc