• Willing to compensate

We are three brothers having two properties in dispute. one property is approximately 9800 sq ft (Sch-A)and other property is 5200 sq ft (Sch-B). 75% of Sch-A Property is enjoyed by Eldest Brother (B) and 25% is being locked by Youngest brother (Y). Sch-B Property is being enjoyed 70% by Middle brother (M)and 30% is being kept in lock by Y. Y filed a partition suit in the court and court has decided that all three brothers will have equal share i.e. 1/3rd in both the properties and a pleader commissioner has been appointed. Now, the brother M wants that both the property be valued and 1/3rd value of aggregate should be adjusted by paying in terms of money to brother Y so that he can purchase a third property,as he is not enjoying both the properties and put an end to the division or demarcation of properties by pleader commissioner but brother Y is insisting to take division from both the properties. If division is made in accordance with brother Y the value of the property will be reduced as also its uses. Brother Y is not willing to settle at any cost. Now my question is whether a petition by filed in the court suggesting what brother M is asking with brother Y ? If yes how and in what manner so that it could succeed or any other suggestion.
Asked 8 years ago in Civil Law

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5 Answers

1) once preliminary decree of partition is passed by court and commissioner appointed the property would be divided by metes and bounds on basis of commissioner report

2) if property is incapable of being divided by metes and bounds or it appears to court that sale is more beneficial court may direct property to be sold and proceeds divided equally between the parties

3) under section . 2 and 3 of the Partition Act, the various stages

in the Proceedings would be as follows :

1. In a suit, for partition if, it appears to the Court

that for the reasons stated in s. 2 a division of the

property cannot reasonably and conveniently be made and that

a sale of property would be more beneficial it can direct

sale. Ibis can be done, however, only on the request of the

shareholders interested individually or collectively to the

extent of one moiety or upwards. (2) When a request is made

under s. 2 to the court to direct a sale any other

shareholder can apply under s. 3 for leave to buy at a

valuation the share of the other party asking for a sale.

(3) The court has to order valuation of the share of the

party asking for sale. (4) After the valuation has been made the

court has to, offer to sell the share of the party asking

for sale to the shareholders applying for leave to buy under

s. 3. (5) If two or more shareholders, severally apply for

leave to buy the court is bound to order a sale of the share

or shares to the shareholder who offers to pay the highest

price above the valuation made by the court. (6) If no

shareholder is willing to buy such share or shares at the

price so ascertained the application Linder s. 3 shall be

dismissed, the applicant being liable to pay all the costs.

Ajay Sethi
Advocate, Mumbai
94734 Answers
7539 Consultations

5.0 on 5.0

you should file an application before the court for partition of property on ad valorem because if it is partitioned on equal share basis then it will cause adverse effect on the property subject to its use and valuation. court has power to divide property on valuation and give option to the other share holders to purchase it on market rate.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

Now my question is whether a petition by filed in the court suggesting what brother M is asking with brother Y ? If yes how and in what manner so that it could succeed or any other suggestion.

M or any party to the case may file any petition as per their desire but the court cannot force any individual's desire or decision on others.

If Y is not agreeing for the compromise proposal, the court may not be able to force the decision on him.

If the property cannot be partitioned or there arrives no consensus in dividing the property equally, the court may pass an order to bring the entire property into auction and the proceeds shall be disbursed equally among all the heirs.

T Kalaiselvan
Advocate, Vellore
84934 Answers
2197 Consultations

5.0 on 5.0

Whether court will intervene for the settlement I have asked for., also cite case law

Court will not intervene in the proposal, it may refer the matter before a mediator who may arrange for a compromise situation but if that does not happen then the court shall proceed as per law.

T Kalaiselvan
Advocate, Vellore
84934 Answers
2197 Consultations

5.0 on 5.0

In a partition suit the court can order the sale of undivided property only if all the co-owners are in agreement to sell it and divide the sale proceeds among themselves. In the absence of such an agreement the court can only order the division of property. No separate petition can be filed for the sale of property,

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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