• Division of property

My grandfather had two wives. My father is the son of first wife and she died in 1951.My grandfather died in 1973 and he is survived by my father, my father's sister's husband and children from the first marriage. From the second marriage my grandfather is survived as on date by 2 daughters and 3 sons+ one deceased son's widow + two sons.All the property owned by my grandfather was ancestral property and he did not leave any will at the time of his death. The property is some agricultural land, house and a plot. 

My father now aged 70 years has tried to amicably resolve this and acquire his lawful share but on each occasion he has been duped and they got his signature and sold some land and then refused for partition. Since last 18+ years we have not given our assent to any of the transactions. Now I have decided to pursue this matter to it's conclusion. I need your guidance in the matter.

Some questions:

1. What is the share my father is entitled to in the property ? [ surviviors - First Marraige :my father, father's sister's husband and two children + Second Marraige : 2 daughters + 3 sons+ one deceased son's widow + two sons]

2. In light of the latest interpretation of the SC judgement on daughter's anscetral property entitlement [http://indianexpress.com/article/india/india-news-india/supreme-court-sets-2005-cut-off-on-women-right-to-ancestral-property/] since my grandfather died in 1973 will his surviving daughters and my father's sister's husband and his two children have any right in the property ? My father's sister died in 1992.

3. At the moment the Encumberance Certificate for the agricultural land has names of my father's sister's husband and his children + my father's step sisters. can those names be removed ?

4. From the EC I see that my father's step brothers have taken loan on the agricultural land after mortgaging it without my father's consent. So what should be the legal standing of the bank's action? The bank is a co-operative bank. Please correct me but I believe one cannot mortgage a property and take loan if the property is held jointly. What do we do to get the loan off the EC ? How do we question the bank ?

We are all for settling the matter amicably but it's not been possible. What legal actions can be taken to get our share ? Considering the way courts work in our country I want to also know how do we stop any usage of the land in dispute unless the same is partitioned.

Thanks in advance for your help!
Asked 10 months ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1) your father has one tenth share in property . In short all children of 2 marriages have equal share in property 

2) you have not mentioned on what basis you say property is ancestral . If property is ancestral daughters will not have any share if father died before 2005 

3) how has agricultural land been transferred in name of other legal heirs , if your father had given his consent and relinquished his share he would not be able to make any claim 

4) your father consent is necessary to mortgage the land . It is surprising that bank had not take father consent . Bank can recall the loan if consent of all co owners not taken 

5) file suit for partition to claim your share in land and obtain injunction restraining sale  of land 
Ajay Sethi
Advocate, Mumbai
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1. What is the share my father is entitled to in the property ? [ surviviors - First Marraige :my father, father's sister's husband and two children + Second Marraige : 2 daughters + 3 sons+ one deceased son's widow + two sons]
In the given situation your father shall be entitled to 1/8th share in the property left behind by your grandfather.



2. In light of the latest interpretation of the SC judgement on daughter's anscetral property entitlement [http://indianexpress.com/article/india/india-news-india/supreme-court-sets-2005-cut-off-on-women-right-to-ancestral-property/] since my grandfather died in 1973 will his surviving daughters and my father's sister's husband and his two children have any right in the property ? My father's sister died in 1992.
The supreme court judgement shall not applicable to this situation because all the legal heirs are entitled to a share out of their deceased father's share who died intestate.




3. At the moment the Encumberance Certificate for the agricultural land has names of my father's sister's husband and his children + my father's step sisters. can those names be removed ?
Encumbrance certificate alone cannot decide title to the property.




4. From the EC I see that my father's step brothers have taken loan on the agricultural land after mortgaging it without my father's consent. So what should be the legal standing of the bank's action? The bank is a co-operative bank. Please correct me but I believe one cannot mortgage a property and take loan if the property is held jointly. What do we do to get the loan off the EC ? How do we question the bank ?
The property cannot be mortgaged if the co-sharer has not consented therefore it is clear that the borrowers have suppressed the facts material to issuance of loan or created fake document or forgery to obtain mortgage loan. 
Your father can seek partition and disown his liability towards the loan amount to which he is not a party. 



We are all for settling the matter amicably but it's not been possible. What legal actions can be taken to get our share ? Considering the way courts work in our country I want to also know how do we stop any usage of the land in dispute unless the same is partitioned.
Your father can file a partition suit an also file an application seeking injunction restraining others from further alienating or creating anymore encumbrance n the property till the disposal of the suit.


T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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your father has 1/8 th share in property.In your case the supreme court judgement is not applicable .In your case all the legal heirs are entitled to a share out of their deceased father's share who died intestate. Encumbrance Certificate does not shows the ownership of the property.

The legal action in fornt of your father is filing partition suit.Also obtain injunction restraining sale  of land by filing application seeking injunction restraining others from further alienation of the property
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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1. The children born out of both the wedlocks of your grandfather have an equal share in the property. The share of deceased children has devolved on their legal heirs. Your father has a 1/8th share in the property, prima facie. Any legal heir can file a suit for partition to cull out his/her share in the property.

2. The latest interpretation of the SC applies to only ancestral property, which legal character is not conferred on your property, so ignore the SC ruling,

3. The names cannot be removed as they are also legal heirs to your grandfather.

4. Unless the agricultural land was partitioned it could not have been mortgaged except with the consent of all the legal heirs. So if the bank attempts to take the possession of the land, the condition precedent to which is the failure of the mortgagor to repay the loan, your father and other legal heirs can move to civil court to seek stay against bank action.

5. During the lifetime of your father it is he alone who can initiate the legal process to cull out his share through a suit for partition. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) property which has remained undivided for 4 generations would be ancestral property 

2) once partition has taken place it ceases to be ancestral property 

3) if your father has not relinquished his share he can file suit for partition to claim his share in property 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
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Hi, Your father can file a suit for partition of his share in the property.

2. As the properties are the ancestral properties so as per latest Supreme Court ruling daughters have no right to claim share in the properties if the properties are ancestral properties and father is died before 2005. Therefore daughters have no right to claim share in the properties. 
Pradeep Bharathipura
Advocate, Bangalore
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133 Consultations
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As per law a property for defining it as ancestral in nature, it should have been passed to the fourth generation as it was with the original buyer/owner without it being partitioned or any transaction for transfer of property effected in the previous three generations, then the fourth generation heirs have coparcenery rights through their respective father's shares.
In your case the property was already partitioned among the sharers of your grandfather therefore the ancestral nature extinguished. Therefore since it cannot be considered as ancestral property, the supreme court ruling will not be applicable to this situation.
After proper partition the individual share holders can apply for mutation of revenue records and get the acquired property registered on their names based on the registered partition deed.  Then they can get the EC's and property records on their individual names. 
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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What is ancestral property ?
 Property inherited upto 4 generations of male lineage (i.e., father, grand father, etc.) is called as ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.

 What is not ancestral property ? 
Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties. Self acquired property on the other hand can become ancestral property only if it is thrown into the pool of ancestral properties and enjoyed in common. This is a matter to be determined on the facts and circumstances of the case.

Property inherited by a Hindu from his father, father's father or father's fathers' father, is ancestral property. Property inherited by him from other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great-grandsons, they become joint owner's coparceners with him. They become entitled to it due to their birth. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons’ sons and sons’ sons’ sons’ but as regards other relations he holds it and is entitled to hold it, as his absolute property
Ajay N S
Advocate, Ernakulam
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If the property was inherited by your grandfather then it is not ancestral in character as the ancestral character disrupted due to inheritance. 
Ashish Davessar
Advocate, Jaipur
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449 Consultations
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I would like to know if it is legal to take step #3 i.e. take possession of the land which was orally ear marked for my father ? Can we approach police to provide protection in case of obstruction ? What is the suggested course of action in this case ?
You say that the property was ear marked to your father, what is the proof for that?, If you have any documentary proof for that, then you can make a move even then the police would ask you to come through court for establishing the documentary evidence in your favor. This is not a conducive or favorable situation to you, it may back fire.




It was mentioned in the original advice that we should file a partition suite and take injunction against selling land. Is it also possible to bar anyone from entering the property ?
Can the case [if we decide so] be filed in a court which is located in another district ?
In the same injunction application yo can seek the relief of restraining the others from cultivating the property or using it for any purpose till the disposal of partition suit. 
You cannot file the partition suit outside the geographical jurisdiction.
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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1)you cannot take forcible possession of land which was orally marked for your father 

2) police wont intervene as you dont have any documentary evidence of any such partition 

3) file partition suit and obtain injunction against sale of land 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
Police has no role to play in this as the question of title is involved. It is within the domain of civil court alone. Your father is required to file a suit for partition to claim his separate share in the land. An oral partition, I repeat, is no partition. Injunction can also be sought to restrain any stranger from entering the property. The case is to be filed in the court within whose jurisdiction the property is situated.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) jont owner of property can continue to remain in possession but he cannot sell the property if courts grants an injunction 

2) partition suit take years to be disposed of 

3) you can get stay order from court within a month or so 

4) you may not  get injunction against person to whom possession has been granted before filing of suit 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
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Injunction can be obtained against the entire world to prevent breach of a duty, a duty to honour the statutory rights. If, however, there is somebody already cultivating the land then the court will not ordinarily grant injunction against him unless the partition suit is decided. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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OK, So even if the property is jointly owned one person can keep possession of it and continue to enjoy ? On what basis can those who are cultivating the land can continue to cultivate it ?
The user will continue to occupy and cultivate the land until there is a restriction from a court by an order passed by it. You may have to apply for it before court. 



Do you believe it is possible to take an injuntion against anyone I repeat anyone [ my father's step brothers or any farmer whom they have let out the land] from using it for any purpose unless the partition suit is settled ? It is extremely important that no one uses the land otherwise they will not be compelled to settle the case.
The advise give to you is to be followed by filing suit and connected applications before court and argue your matter to convince court to get you the desired relief.  Here at the maximum we can advise you the legal course of action to be followed by you, so it becomes your duty to follow it up through your advocate if you feel this advise is suitable to you.  Nobody here can give an assurance for the desired outcome on the petitions filed before court for the reasons that firstly it should be properly drafted with details of the case neatly arranged and pleaded with the help of supporting documentary evidences, secondly, the advocate who handles the case has to properly argue and present the case before the court to convince the court your requirement and the justify the relief sought.  So once again it is reiterated that it depends upon how you handle the case properly in the court to get your desired relief . 




Also any timeline for getting this settled in lower courts ?
Generally there is no time limit for partition suits, it may take 5 years or even more than that for disposal. It again depends on various factors. 
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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1) obtain certified copy of records from sub registrar office 

2)if survey numbers have been tampered with you have to file title suit for rectification of revenue records by incorporating your nane as owners and possessors of land 


3) revenue authorities won't rectify record entries unless you get your title to suit property declared by court of law 

4) you can seek injunction restraining creation of third party rights in respect of suit property 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
1)your father  needs to file  RTI application to find out how His nane was deleted from the rcords of survey number of the property 

2) if his signature had been forged your father can file complaint of cheating , criminal breach of trust against the said persons 

3) if police refuse to register complaint you can file complaint before magistrate under section 156(3) of Crpc to  direct cops to investigate and submit report 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
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1. A prima facie case of cheating would be made out.
2. You can go to court for appropriate relief if police does not perform its duty.
3. If forgery is shown the prospects of obtaining injunction sky rocket.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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It seems that mutation was carried out without any relinquishment deed being executed by your father. So a criminal prosecution for cheating can be launched in addition to the civil remedy available to him.
Ashish Davessar
Advocate, Jaipur
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449 Consultations
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1. Can this be now be recognized as prima facie a case of IPC 420 ?

This may not fall under the category of cheating.  This will have civil remedy alone and not relief under criminal law. May be the land grabbing act is proved then the criminal law can be operative and the culprits can be punished.





2. The police may refuse to act according to the book as there is lot political interference so should we proceed to file FIR or directly approach court ?

The police may not entertain any application in this regard stating that this is a civil dispute.






3. Considering the current situation of forgery is there a better chance of obtaining injunction against any one [including those in possession of property] from entering the property and against any sort of usage of the property ?

Yes you can file a permanent injunction suit seeking to restrain the defendants from alienating the property along with a petition for declaration of title. 
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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In the meanwhile I want to understand what are my options. I fail to understand how can someone's name be deleted without registration ?

There are possibilities to manipulate the system to get EC deleting certain details, that the culprits in connivance with the registrar office staff might have manipulated the fake and fraudulent EC, however this is my opinion, the fact may be that the wrong doers with the help of corrupt agents and staff of the registration department might have got your father's name deleted from the register, you can manually verify the register held in the office of the registrar.





Since the intentions are so dangerous I want to pursue this case swiftly and start criminal proceedings if possible. In my humble opinion this is needed as they have had the temerity to tamper with ECs and based on this development we probably can take an injunction barring any one from entering the properties in dispute. 

For initiating criminal proceedings in such events you need to blame someone, how do you think that you can find one to be blamed.
The alternate suggestion of filing a permanent injunction suit will be a better choice. 



T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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1.Does that mean in 2005 already my father had no share in the property ? and is this the reason why the mutation which transferred property from all joint owners to one person did not require my father's consent ?

If your father was a joint owner or co-sharer, it is mandatory to have your father's consent for mutating the revenue records.  What is the proof of your share in the property.  If your father's share in the property is confirmed, you may file a partition suit seeking partition and separate possession of his share in the property.




2. I know I have to now get hold of those documents which enabled these transactions. I do not know what were the rules in Karnataka prior to 2005. Also what if the original documents are untraceable ? My friend who got these certified copies for me told that the people at Sub Registrar office were unable to trace a document from pre-2005 period . So I am worried what would happen if suddenly all the documents which enabled this transaction which we[my father and our family ] think is dubious without an iota of doubt go untraceable ?

It is wrong to say that the documents or details are not traceable in the registrar's office.  The office maintains records of properties for more than 100 years, so you have to approach the registrar directly to address your concern and problem  to get your desired relief.



 Is there a time limit to question a transaction like 10 years etc ?


There is no such limitation.
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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1) we do not know on what basis entries have been made in revenue records that your father has no share in property . file RTI application as advised as to how your father name is deleted from the revenue records 

2) a search in sub registrar office would indicate whether any transactions have taken place in respect of the property 

3) it is duty of authorities to keep safe custody of records . it is incumbent on them to produce the records 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
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1. Exclusion of name from Mutation certificate does not diminish the title to a property. I repeat unless the relinquishment deed had been executed the name cannot be struck off from revenue records.

2. If you have the copy of the original title deed then you are free to file a suit for partition. There is no time limit in your case to challenge the alienation.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) you would  have to take 30 years search in sub registrar office 

2) whether any  sale deed , gift deed or any document executed in respect of the suit property 

3) apply for certified copies of all documents that enabled mutation from 2005 till date 

4) obtain EC for the suit property 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
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On the basis of the documents which you rely upon,
 i.e.,  My father has copies of RTC [pahani] which lists my father as joint owner[from past].  My father has the court order from that case where my father's name is mentioned and the court orders to maintain status quo [i.e. joint ownership]. I believe this itself can be a document for pressing our rights ?
You may first file a partition suit  (your father), in that your father can state and narrate the entire events by which he was entitled to the said properties and a share in it etc., 
Mere mutation records do not confer title to properties.  Proper registered title documents can only be relied upon as admissible evidence in court to confirm and declare the title of the holder.
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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1. If the dispute has been finally settled by the decree which you are referring to then title can be claimed in the light of it.

2. You require all the title deeds and certificate of mutation for the relevant period, a local lawyer should be able to help you in obtaining these.

3. From the SR's office you will get only certified copies. If you do not apply for certified copies on discovery of the original document then the purpose of exercise would be defeated.

4. Show the documents to a lawyer to know what exactly you require.
Ashish Davessar
Advocate, Jaipur
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449 Consultations
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