• Property partition

Dear sir/madam,

We have 4 storey undivided property in the name of my Grandfather A and his another 3 brother B,C and D. None of them are now alive . My father (son of A) has filed a partition as the the property was undivided . The court has order that the property should be measured and divided . I have two major query 

1) Since all the owner are now deceased what will be outcome (As a common person my logic which some lawyer also agree that the 4 storey will divided equally to 4 bothers family that is A,B,C,D will get one floor each and family under them will get it divided internally that is family of A will have no right in the floor of family B,C or D they just have to divided only in their own floor) Is it a correct thing to assume?

2) Somehow the family of B,C and D are trying to put hindrance in the legal partitioning. Recent I got the news that they are planning to get a stay order in the proceeding . My question is on what ground they can stop the partition ? We are just demanding our legal right . Is there any loop hole in our demand or any reason for which I should worry . Is there any way family of B,C D can stop the partitioning and keep prolonging the case?

I would very grateful for your expert advice and guidance . We are not looking for anything unlawful we just want a peaceful partition can we get justice without delay?

Thank you very much in advance .

Regards,
Mani
Asked 8 months ago in Property Law from United States
Religion: Hindu
A. As you said, A,B.C and D will get equal right over the property and their respective family members could claim thier respective share in the A, B,C and D Property. There is no doubt about your property partition equally under the law.

B. In your case, no unlawful interruption permissible before the court of law. However, if any family belongs A,B, C or D could raise objection to take particular portion due to description of the property is not similar or any problem with marketable value i.e Furniture issue, Super builtup area issue, Balcony issue,  floor issue especialy 4th floor or 3rd floor. Under the said circumstances, the proceedings may have delay and court may give an option to settle out of court settlment or compromise  for amicable settlment. 

C. Sometimes, any party may file an Interlocutary Applicatons to pass temporary injuction for non alienation of the property under the lease, Rent, Mortgage, Gift, Sale, Exchange etc., In suc being, if the fact and circumstances was critical that hearing will keep on going over the IA.

D. Therefore, all the respective parties settle the matter amicably and file a compromise petition before the Court to end the drag and get expeditious remedy from the Court.
B.T. Ravi
Advocate, Bangalore
736 Answers
29 Consultations
5.0 on 5.0
1. Yes. you are right on this.
2. If they prefer appeal om the ground of wrong calculation of shares then appeal at the time of getting admitted may grant stay on final partition.
3. So unless and until it is done apply in the trial court appointment of commissioner for partition by metes and bounds.
Devajyoti Barman
Advocate, Kolkata
5186 Answers
54 Consultations
4.9 on 5.0
Hi, In partition suit after the preliminary decree passed by the Hon'ble Court you have to make an application for Final Decree proceedings in which actual division of the property take place in the Final Decree proceedings you can put forth your options in the Court and if the all the parties in the suit are agreed for this then the Court will divide the property accordingly.

2. As far as challenging the proceedings is concerned we have to go through the file then only we can give you proper opinion how they can challenge the appeal.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1) you are correct . since there are four floors each brother family will get one floor each 

2) no stay would be granted . your father is justified in seeking partition 
Ajay Sethi
Advocate, Mumbai
23173 Answers
1217 Consultations
5.0 on 5.0
1. Simply speaking your expectation that the court will divide the property floor wise is not always correct,

2. The court commissioner appointed to divide the property, will see the value of the partitioned property to make equal division of the property value wise,

3.The 3rd floor flat may not have equal value of that of the ground floor flat,

4.   If other parties have filed an application for na stay order, you will get a notice thereof to contest the same,

5. Normally partition is granted by the Indian Courts after the stay orders, if any, are vacated in due course.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
1) Since all the owner are now deceased what will be outcome (As a common person my logic which some lawyer also agree that the 4 storey will divided equally to 4 bothers family that is A,B,C,D will get one floor each and family under them will get it divided internally that is family of A will have no right in the floor of family B,C or D they just have to divided only in their own floor) Is it a correct thing to assume?

You have rightly heard of it, this is how the partition shall take place.





2) Somehow the family of B,C and D are trying to put hindrance in the legal partitioning. Recent I got the news that they are planning to get a stay order in the proceeding . My question is on what ground they can stop the partition ? We are just demanding our legal right . Is there any loop hole in our demand or any reason for which I should worry . Is there any way family of B,C D can stop the partitioning and keep prolonging the case?

The families of BCD may try to interrupt the court proceedings or drag on the issue endlessly but the fact that the partition suit will be decided based on the facts cannot be changed, so wait and watch the developments and follow up the case properly.
T Kalaiselvan
Advocate, Vellore
13969 Answers
127 Consultations
5.0 on 5.0
1. The share of every deceased owner has devolved on his legal heirs, so all the legal heirs will get an equal share in the property on division by metes and bounds. Your understanding is practically correct.

2. UNless  B C and D can either prove that the partition is not done in accordance with law or they have inherited the property they cannot get a stay order.

Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
they can appose on the ground of easement right. but logically correct partition is to give each flat to each one. if all heirs are living in separate flats then court can pass order of partition on the basis of current possession. 

you can also file family settlement deed and get partition decree accordingly. 
Shivendra Pratap Singh
Advocate, Lucknow
2735 Answers
41 Consultations
4.9 on 5.0

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