Joint family undivided properties matter
I am from Bihar and live in so called Joint family (By Law No Document available for proof). My Grandfather has 3 sons, 1st (Bade Papa-Elder Father) and 2nd (My father) had passed away and 3rd (Uncle) is alive. My father was the Karta of this Joint Family. He had the wholesale cement shop and agriculture lands which my father had bought but due to some reason few of the lands he had bought, he bought on Bade papa’s Name and on Bade Papa's Sons’ name. All financial matter was getting managed by my father. Even education expenses of Bade papa's sons had been paid by my father as that time he was only the source of income in our joint family.
Bade papa’s sons and Uncle’s family are well settled now and they have bought lot many properties (Commercial and Residential) in different-different cities but they never contributed anything in buying lands at native place. There is a discussion going on to divide the properties.
They (Bade Papa's sons and Uncle’s family) are asking to divided all the properties (Few are on my Grandfather's Name, Bade father's Name, Bade Father's Sons' Name, My Father's Name, Uncle's Name) in 3 equal parts for Bade Papa, Papa & for Uncle. The lands which are on Grandfather's Name we inherit and rest all are bought by my father (but all lands are not on his name).
There is a 4 acres plot which is on my Elder Father's Name and a case is going on in the High Court Patna with 3rd party. During the hearing of this case, my elder father clearly said in-front of court (in wetness box) that I don't know anything and I have not done anything [He intended to say that he has not bought this properties], everything was done by my brother XYZ. We got the copy of that statement. Also in this land there is a tube well pump which was taken on loan by my father on his name and to get the loan he had produced this 4 acres land's paper (which is on elder father’s Name). This kind of lot many evidences we have which directly indirectly say that these lands are bought by my father but not on his name due to some circumstantial reasons.
Our stand point is that divide only inherited lands in 3 equal parts and leave all the lands bought by my father else divide everything (Inherited, bought by my father, bought by Bade Father's sons and Uncle) in 3 equal parts. They are not ready on this point and now they started selling lands without taking consent of other shareholders. They are threatening us that whatever lands are on their name (Elder Father's Name, and his sons' Name, Uncle's Name), by law ,are going to be their properties.
Still nothing is divided and I am not sure what is the chance of winning If we knock the door of court?
1st thing what we want to do that no one should sell land until it divides? Need to know all the processes to stop them in selling the land immediately?
I request all senior and experience advocates to guide us.
I appreciate and respect your valuable times. Thank you in advance.
Asked 1 year ago in Property Law from Australia
1) file suit for partition for divisions of lands by metes and bounds
2) seek injunction restraining uncle from selling the properties
3) if property was bought by father in name of uncle out of joint family funds your uncle would be mere trustee of said property .
4)it was bought for benefit of joint family and your father legal heirs are entitled to equal share in property
5) contact a local lawyer
1. The title of the property originates from the sale deed. The title holder is the person in whose favour the sale deed has been registered. If you have documentary evidence to prove that your father paid the sale consideration of the properties which were registered in favour of your elder uncle then you can file a suit for declaration of the title of your father in the civil court on the ground that the property is benami.
2. Since the properties are being sold without your consent you may also seek injunction to restrain them from alienating the properties further so that they do not succeed in creating third party rights.
3. Consult a lawyer with all documents related to the property and also the case pending in Patna HC/
Though the fact may be that your father ought all the properties out of his hard earned money or by a family business, the underlying law is very clear that the properties stand in the name of others and not your father's name.
The story what you narrated mentioning that your uncle deposed ignorance about the property and your father borrowed loan etc, will not draw sympathy of the court to give a verdict in your favor.
Since the property stands in their names, they are the absolute owners of the property having marketable title, hence yo cannot obtain an injunction too nor your partition case to partition those properties shall not be maintainable in law.
In my opinion, instead of taking the lgal route you may try to go for a compromise with your relatives and bargain a little more share than to settle down to your meager legal entitlement.
1. In which year your father had purchased the properties which were registered in the name of your Bade Papa?
2. f they were registered before the year 1988, you can claim that the said properties are actually your father's properties which he had purchased in 'Benam' of our Bade Papa.
3. After the enactment of Benami Properties (Prevention) Act, 1988, properties purchased in Benam will not be considered as properties of the person who paid for it.
4. If those were purchased after the year 1988, it will be prudent on your part to get the partition settled as per the proposal of Bde Papa's and uncles family members as otherwise you may not get the same if you proceed legally.
5. If those have been purchased before the year 1988, you can file a declaratory suit claiming that those properties purchased in Benam by your father actually belonged to him for which you are its present claimants being your father's legal heirs.