Dear Sir, I have a property acquired by My Grandfather situated in Kolkata having G+2 and terrace. The property is used as follows. 1st Floor- My Fathers Family 2nd Floor- My Fathers Younger Brother (i.e. my Younger Uncle) Family Terrace - Common Use Ground Floor- 2 rooms used by my Father and 1 room by my Younger Uncle and there is a common area which is used as Entrance. The whole property is possessed by my Father and Younger Uncle. My Grandfather died in 1986 leaving no will and the property became undivided property. My Grandfather had total 3 sons and 2 Daughters. After his death each of them had 20% undivided share. My father’s elder brother (i.e.my Elder Uncle) lived separate from my Grandfather and never contributed to the family and do not have any possession in the property like my Father and Younger Uncle has. My Elder Uncle expired in 2008 and now his sons are demanding Property share but yet they have not filed any suit. In 2013 my Fathers Younger Sister (i.e. my Younger Aunty) gifted her share (i.e. 20%) to my Father after that my Fathers total share became 40%. The gift was through Registered Gift Deed by paying Stamp Duty and Registration charges through Registrar office. Now the share in this property is as follows- 40% - My father (Holding possession in the Property) 20%- Younger Uncle (Holding possession in the Property) 20%- Elder Uncle (Not holding any possession in the property) 20%- Fathers Elder Sister (i.e. my Elder Aunty) (Not holding any possession in the property) In 2015 my Father expired and I am his only legal heir. After my Father’s death I shifted to my self-owned property and locked my possessed part (i.e. 1st Floor and 2 rooms in ground floor) in my Grandfathers property. In 2020 my Younger Uncle asked me for my 2 rooms in Ground Floor for 15 days for keeping some goods, I gave him the keys in good faith and now he is not willing to give my 2 rooms in ground floor and and also he has captured the terrace which was for common use earlier, now he is planning to use the whole of Ground floor (including my 2 Rooms) as a Big Shop in partnership with a Local Gangster. Now please advise me how to get back my 2 rooms from his possession. Also advise me from long term perspective what should I do in this case to arrive at a permanent solution within a short timeframe.
1. The physical possession alone doesn't make a co sharer entitled to more than his due share.
2. You are aware of the respective share belonging to each co sharer. Therefore, they are entitled to their due share only.
3. Now your younger uncle bh merely taking possession of extra area can not use it exclusively for commercial gain.
4. Now to get your share and that of others do file a suit for partition and injunction.
Feel free to contact for further assistance.
File a suit for partition and distribute the property as per the shares..if sharing the property is not feasible, you can sell the entire property through court and take the sale consideration as per the respective shares determined by Court.
File suit for partition for division of property by metes and bounds
2) seek an injunction restraining sale or creating third party rights by uncle
You can file for partition suit in the court where you have 40% share legally, she atleast you will be able to get 40% share from ground floor to top terrace, so then when you pinch uncle's 2nd floor where he resides it then he will release ground and terrace.
Later on he may come for solution.
In the above scenario proceeding with partition suit is only remedy
File suit in court to recover possesion and injunction.
Try filing FIR to recover the rooms.
Dear sir,
The best possible solution is to enter into a family settlement agreement between all the parties and get it registered.
In case your younger uncle or any other party doesn't agree, you'll have to institute a suit for partition by metes and bounds. Thereafter you can enter into an agreement with the non-users to permit you to use their share gratuitously or in return of some consideration (monetary benefit). It will be a permanent solution but it will not be in a short time frame.
Litigation in India is a long drawn process and might take years together. However, in order to stop your uncle from using the ground floor as a shop, you can seek a temporary injunction during the pendency of suit to stop him from interfering with your possession and changing the nature of property (residential to commercial).
Hope this answer helps.
Best wishes.
I have following queries regarding my problem. 1. My younger uncles intention is to live in the property and capture it fully through muscle power. He do not want to get into a family settlement because he thinks that he is supreme and no one can challenge him as he is the sole owner of this property, he says that since he lived in this property for more than 12 years so he can claim benefit of adverse possession and even suit for partition has become time barred and cannot take back the property which is in his possession. 2.Sir can i sell my undivided 40% share to an outsider buyer who is not my family member without informing my younger uncle, if yes then will the outsider buyer can take possession of the part which i am having right now. 3. How much time does suit for partition takes to settle the matter or sell the property through court.
No adverse possesion in thai case.
You can sell
Partition suit takes time
Partition suit takes 15 years to be disposed of
2) you cannot claim adverse possession against family members
3) possession of one is possession of all
4) suit is not barred by limitation
1. Rule of adverse possession is not applicable in your case. You can file a suit whenever you want to.
If your uncle uses muscle power or threatens you, you can institute criminal proceedings against him.
2. You can sell undivided share, but the buyer will not be entitled to take possession of the part you are having right now. "Undivided share" itself means that separate possessions do not exist. The buyer would just have 40% share. The possession would have to be determined either by family settlement or through partition suit. There is no third way.
3. Nothing is certain. If the other parties want to drag on, they can drag it for a decade or even more by filing multiple applications and approaching Appellate Courts on each count.
You can sell your share but possession will be a problem in joint property. Partition suit may take time.
Yes you can sell your 40% undivided share it is a possibility to have only 40% share in the building irrespective of your possessed area.
Are using muscle power you have to approach the police for protection to get your share
1. File for delay condonation for partition suit.
2. Yes you can sell your share.
3. Approx 1 year in normal conditions
Please go for partition suit and get divided the property based on documents and agreed sharing ratios as per gift deed.
You may also opt for temporary injunction against all who are threat to your property and after proper division of share take the possession.
You can't sell the shared property directly to an out sider without offering your family legal heirs called right of ESTOPPEL.
The precedence of Court of Law depends upon facts of the case and each facts differs from case to case.
You need full consultation with a lawyer to proceed with your matter before the Court of Law on the issues specifically touching the subject in your matter available on the facts of the case.
File partition suit first, take proper legal recourse sir things will be solved... else you will have to sell for throw away price
Now at least you try to visit there and have possession on your floor and do keep rented family, and try to ask keys of those two rooms. No matter of muscle power do not hesitate of it, call the police immediately. Visit always in your property.
- After the death of your father intestate his property share of 40% would be devolved upon his legal heirs ,and
no uncle can claim over the same.
- Since, your had given the said portion of the property in good faith , hence his status is just like licencee.
- You can file a Suit for Mandatory & Permanent Injunction before the court , for evicting him from your portion and to
restrained him from creating third party interest.
- No adverse possession suit is maintainable in the ancestral property and if there is already partition of the property.
- Yes, you can sell your share , as you have already Gift deed in your favour.
There is no illegality in selling undivided share of a co sharer in a joint property. However since without physical partition f your share the purchaser can not take physical possession of the purchased property, you may not get fair market price from your sale.
Hence as I advised earlier file the suit for partition.
File a partition suit in the court which has jurisdiction.
This was your grandfather's property who was reported to have died intestate.
Just having possession of the property will not entitle you to legally own the possessed portion of the property.
Since your father is is entitled to 40% share in the property, it would be better that you file a partition suit and seek for division of proeprty equally by metes and bounds with separate possession of your entitled legitimate share in the property.
You can file an application seeking to restrain your uncle from letting out the portion for lease or rent during the pendency of the partition suit.
1. Your uncle's views or intentions are not maintainable.
There is no adverse possession if the property has been jointly shared by the legal heirs of the deceased owner.
2. You can sell the undivided and unidentified share of the proeprty, you cannot sell the particular portion of the property.
3. It may take three to four years to get the suit disposed.
1. First of all lodge a police complaint against your Uncle for breaking open the lock of your said two rooms if he does not have any evidence that you had permitted him to take possession of the said rooms.
2. If the police refuses to register FIR based on your complaint, file a writ Petition before the High Court against police inaction praying for a direction upon the police to register FIR based on your complaint, investigate and act as per law.
3. You can also file an application before the Magistrate u/s145 of Cr.P.C. seeking return of possession of he said rooms. In all cases, you shall ave to state that he has broken open the locks of the said two rooms which were in your possession.
4. You can also file a partition suit ( which will be filed by any of the other legal heirs some day anyway) claiming 0% share of the property by which your Uncle will be restricted to his hare of 20% of the property only.
1. His possession is not called adverse possession.
2. Partition suit has not become time barred.
3. Organise all other legal heirs and file the partition suit in addition to the cases/complaint which you have been advised to file/lodge in my earlier post.
Before you sell the property you need to take the no objection from otrher co sharers.
Regards
