• Partition of undivided share of land

We are two brothers & two sisters. Our parents are alive. My father had purchased, on his own earnings, a property in my mother’s name 17 years back. Subsequently my mother transferred the whole land via gift deed to me and my brother. It was properly registered as 2 gift settlement deeds of ½ undivided shares each - one document was registered in my name and another in my brother’s name. The land was not physically partitioned when the gift deeds were executed. Both the documents shows the whole piece of land and states each can enjoy ½ undivided share. There was no any NOC obtained from my sisters at the time of executing the gift deed. 
Basis my share and using my gift deed, I had taken a bank loan and constructed a house in the whole piece of land where all were living together. After 2 years of construction, due to work, I had to move to abroad / different part of the city and my brother was living in that house for last 15 years. Now I and my brother would like to partition the land equally as individual shares so that we both (and our children in future) will have the liberty to do whatever we want with their respective shares without any dependency. Though I have funded and constructed the house I and my parents are OK for my brother to demolish the existing house. Leaving my piece of land, either he can build a house in his 1/2 share of land or he can sell his piece of land as he wish.
Our parents also feel that we should settle this property without any ambiguity between me and my brother. Another information is that my father has gifted another piece of self-earned land as gift deed to my 2 sisters where they didn’t take NOC from me or my brother. While our gift deeds were registered my sister’s gift deeds were not registered.
Questions:
1.What is the simplest option I and my brother have to get partitioned the land as individual shares?
2.As NOC was not obtained from my sisters while executing the gift deed, can my 2 sisters claim their share now legally?
Asked 3 months ago in Property Law from Kanchipuram, Tamil Nadu
Religion: Hindu
1) deed of partition should be executed for division of land by metes and bounds 

2) your  sisters can claim share as it was bought in mother name by father for benefit of joint family

Ajay Sethi
Advocate, Mumbai
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You need not demolish existing structure for division of property  by metes and bounds 

2) obtain sisters NOC to prevent legal complications later 
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
1.  The partition of property between brothers by amicable agreement between them and prepare a draft deed agreeing to the conditions by both sides, to be prepared in duplicate and get them registered.
After that as per the agreed conditions the properties may be physically demarcated and both the individual can take possession of their respective property  as absolute owners.
NOC from sisters or from you both for their properties is not required.




2.      No.  They canot claim their share, because as a matter of fact nobody has a right to a share in your parents property. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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1. To execute deed of partition for division of land by metes and bounds do we first need to demolish the existing building or can we execute the deed of partition with measurements now and demolish the building later. 

Demolition of existing structure is not necessary if both parties agree for partition with the existing structure in the property and making an arrangement for tha accordingly by compensating for the same between the two.  It depends on the agreement arrived between the brothers




2. As the UDS of the land has already been transferred and registered on sons names stating that the sons have complete ownership on their UDS of the land and they can do whatever they want with their share of land, can still sisters claim their share? If yes to execute the deed of partition do we need our sisters to provide NOC?


Your sisters do not have any rights in the property because this was your mother's property and she can give it away to anyone of her choice, legally their claim cannot be maintainable. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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1. The simplest option is to execute a partition deed which should be registered. The land can be divided without hassles if there is a positive agreement between the brothers.

2. Since the mother was the absolute owner of the property she was at liberty to transfer it to anyone she desired. The NOC from sisters was not required at all. They have no share. 

3.The existing building is not required to be demolished as a condition precedent to the execution of partition deed.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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