• Course of action in case of partition suit filed by opposition

Sir, 
i had gone through your several posts and i m very much impressed with your logics and way of answering.This is the reason why i m sending you this mail in my hours of crisis.My Grandfather was serving as a teacher and 
he had four children, two sons and two daughters. My father is elder amongst all sibling.since my Grandfather was working as a teacher , so he use to come home town occasionally.In the absence of my Grand father ,my 
father was performing the role of guardian(KARTA OF A HINDU FAMILY).My father had performed all his duties and responsibilities with honesty.He never used any means to get personal property.As a KARTA of a Hindu 
family he had done the rituals of my  Grandfather and Grandmother, done the marriage of both his sisters and brother(my uncle),built a house on ancestral land and supported whole family by all means(my mother was
a teacher and she had paid for all those things).Even my father helped my uncle financially when he was studying(now he is a professor in a college).My father sold some pieces of land  at the same time he  purchased
some pieces of land also, when my Grandfather was alive(he done all these things with the permission of my Grandfather only and all purchased land is registered in the name of my Grandfather only). Now the situation 
has changed and my uncle has filed a partition suit in the court of SDM and made his both sisters shareholder in the ancestral land(Although sisters are not in the favour of taking any share as they are satisfied with what they
got during marriage and they are in the favour of my father,they can give it in written also).

NOW MY QUESTIONS ARE:-
(1)My father has not received the partition suit notice filed by my uncle because he was not available that time(although my father has a copy of that).what happen when he will not receive notice again and again??how he can 
avoid to receive the notice???
(2)My Grandfather`s   Grandfather had 120 acres of land and he had two sons (one my Grandfather`s Father and one more).60-60 acres of land were divided between my Grandfather`s father and his brother.my Grandfather was 
two brothers and each of one got 30-30 acres of land.but all the partition was done verbally and not by any court also there was no written agreement  made.Till now even mutation was not done and all the lands are in
the name of my Grandfather`s Grandfather only.In this situation how partition  will take place??will it start from my Grandfather`s Grandfather???
(3)My uncle wants to get 1/4th share in the land which my father had sold when my Grandfather was alive(with my Grandfather`s permission only and sold land value was used to purchase other land).
Is it possible that my uncle will get share in that sold land???
(4)My father`s both sisters are not interested to get any share in any land.They are willing to give it in written also.but my uncle had made both of his sisters share holder without their knowledge.in fact by doing this 
he wants to pressurise us.How my father should go ahead in this case???
(5)What remedial actions should be taken by my father in this situation??From where to start and to whom he should approach??
(6)We want to settle this matter first through talk and then by court.but my uncle is very egoist, he does not want to talk.he wants to pressurise us by partition suit filed by him.how the process of partition can be delayed
(so that,He can come to know the practical thing)s???how much time we should take to respond his notice???
(7)My uncle had occupied the house built by my father on ancestral land also and not willing to give our share(land is registered in the name of my Grandfather`s Grandfather only).what course of action should be taken 
in this situation??
Thanking you and waiting for your precious reply.
Asked 10 months ago in Property Law from MADUBANI, Bihar
Religion: Hindu
1) accept service of notice 

2) it appears to be ancestral property and partition has to be done among all legal heirs of great great grand father 

3) if land was sold and used for purchase of other land your uncle can claim share in purchased land 

4)sisters can execute relinquishment deed that they dont want share in land 

5) father should file detailed reply that he has no objection for partition by metes an bounds 

6) partition suits take 15 years to be disposed of 

6) partition should b done of all lands and all legal heirs of great great grand father made parties to the suit 
Ajay Sethi
Advocate, Mumbai
23153 Answers
1216 Consultations
5.0 on 5.0
Hello,
1. Your father should not avoid receiving any notice or summons issued by the court. Furnish memorandum of address so that your father does not miss any communication from the court. If there was any deliberate attempt on the part of your uncle to deprive your father of any document that he had filed before the court, your lawyer can ask for a copy to be furnished.
2. Yes the partition will begin from your grandfather's grandfather. Reliance will be placed on the documents available and the right of the present generation shall be determined on basis of genealogy to be proved by documentary evidence.
3.Yes, your uncle is entitled to equal share in the property regardless of the fact it was sold the permission of your great grandfather. If a new property was acquired, he can claim a right from the said property as it emerged from the proceeds of the ancestral property. 
4. If your father's sisters are willing to reduce in writing that they are not interested in claiming any rights in  the ancestral property they can do so by means of relinquishment deeds in favor of your father.
5.What he needs to do can be determined only after perusing the partition suit filed by your uncle. As mentioned above, your father can ask his sisters to execute relinquishment deeds in his favor and produce the same in the court.Secondly, your father through his lawyer needs to file a reply to the suit filed by your uncle.
6.Once you have filed a written statement in the court, your lawyer can request the court to arrange for a mediation talk  with your uncle and his lawyer. Possibly you can strike out a settlement and avoid a long drawn battle in the court.
7. In your reply you should highlight the fact that the house is being occupied by your uncle the plaintiff is ancestral property and is subject to partition.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
in this condition all the heirs of your great grandfather will either mutually settle their share or file partition suit. You uncle has vested interest in property so he can file partition suit or apply for devision of his share through SDM according to the revenue code. But in each condition he is bound to demarcate his share which is not possible in your case. You may file a reply, if you receive any such notice, that partition cannot be done due to union of share among many heirs. in this condition partition cannot be done by SDM.
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
4.9 on 5.0
1)My father has not received the partition suit notice filed by my uncle because he was not available that time(although my father has a copy of that).what happen when he will not receive notice again and again??how he can avoid to receive the notice???
Why  your father want to avoid the receipt of summons/notice from court? Is there any specific reason behind this?, if there is no reason ask him to receive the same  and appear before the court either in person or through an advocate so that he is not treated exparte and a decision shall go against him.


(2)My Grandfather`s   Grandfather had 120 acres of land and he had two sons (one my Grandfather`s Father and one more).60-60 acres of land were divided between my Grandfather`s father and his brother.my Grandfather was 
two brothers and each of one got 30-30 acres of land.but all the partition was done verbally and not by any court also there was no written agreement  made.Till now even mutation was not done and all the lands are in
the name of my Grandfather`s Grandfather only.In this situation how partition  will take place??will it start from my Grandfather`s Grandfather???
This situation can be treated as ancestral property also wherein being a coparcener, you too shall have a right in your father's share in the property.  But if you want to avoid the very lengthy process of including the entire 120 acres and all those who have acquired it some decades ago, you may restrict the partition to your grandfather's share alone. But the property will lose its ancestral status.  There is no hard and fast rule that the partition has to include the ancestral properties too.







(3)My uncle wants to get 1/4th share in the land which my father had sold when my Grandfather was alive(with my Grandfather`s permission only and sold land value was used to purchase other land).
Is it possible that my uncle will get share in that sold land???
If any other property was purchased out of the funds from the property that was sold, your uncle can have a share in that property according to his proportion.




4)My father`s both sisters are not interested to get any share in any land.They are willing to give it in written also.but my uncle had made both of his sisters share holder without their knowledge.in fact by doing this 
he wants to pressurise us.How my father should go ahead in this case???
Your both the paternal aunts can execute a registered release deed in our father's favor by relinquishing their rights in the properties.  This way your father can have 3/4th share in the property.




(5)What remedial actions should be taken by my father in this situation??From where to start and to whom he should approach??
He should challenge the partition suit properly in the court if your uncle is not agreeing for any amicable situation.



(6)We want to settle this matter first through talk and then by court.but my uncle is very egoist, he does not want to talk.he wants to pressurise us by partition suit filed by him.how the process of partition can be delayed
(so that,He can come to know the practical thing)s???how much time we should take to respond his notice??
First receive the summons from court, then after appearance drag on the case in the court, your lawyer knows how to do it.



(7)My uncle had occupied the house built by my father on ancestral land also and not willing to give our share(land is registered in the name of my Grandfather`s Grandfather only).what course of action should be taken 
in this situation??
Your father can seek the relief of share in that house in the same partition suit itself as a counter claim.
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
1. Your father can, even if he has not received the notice, engage a lawyer and instruct him to appear in the court. This would be deemed to be a valid service. If he does not either receive the notice or appears in the court the court will proceed ex parte against him.

2. If there was no written partition then it is deemed as if partition never took place, in which succession will open to the property of your grandfather. So all the heirs of your father including your uncle have an equal share in his property which he can cull out by filing for partition.

3. The land which was purchased by the sale of your gf's land will also devolve by succession in the absence of a will by your gf. So your uncle's claim may be sustained by the court.

4. Your father should engage a lawyer to contest the case on merits. Unless the plaint is perused threadbare it is not possible to form an opinion.

5. Your father can also file a suit for partition to cull out his share in the ancestral land which is under the possession of your uncle.
Ashish Davessar
Advocate, Jaipur
18070 Answers
447 Consultations
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