We reside in an non/un-partitioned 3-story building in Kolkata, constructed by my father and his friends. Each floor functions as an independent flat, with occupants selecting their floors by mutual verbal agreement. Different meter boxes with names are installed on each floor. 1 year ago 2 owners died out of 3. After the death of the 2 owners we have done mutation and we have changed their names to ours. As the property was not divided so there was no individual mutation form. Now there are 6 owners. 6 owners are as follows. 1- The ground floor owner, who passed away, was changed to his two children and wife. 2- The first-floor owner is still alive, living alone with no children. 3- In the case of my father, his name was changed to include me and my sister, who reside on the second floor. NAME WRITTEN IN MUTATION FORM. child 1 of ground floor owner , Child 2 of ground floor owner , Wife of the ground floor owner, Second floor owner, Me , My sister Fast forward to 2023, the first floor owner who was living alone decided to create a last will and in the will it is mentioned that after her demise her property share would be transferred to the children of ground floor owner and the children of second floor owner. The will has been registered by sub-registrar and all the legal formalities has been done. In August 2023, the first-floor owner passed away with no surviving family members, leaving us with a will indicating that her share should belong to the other 4 mentioned individuals (2 children of the ground floor owner and 2 children of the second-floor owner). PROBLEMS & QUESTIONS. Problem 1-> We do not currently reside in the building; only the ground floor is occupied by the owners. Now the 1st floor and 2nd floor is completely vacant. We want to give this building to a builder who is promising to give us new flats and some money. But the owners of the ground floor are not agreeing to this. They are asking us to do the partition and sell our share which we do not want. Ques 1-> Is there any way by which we can make the ground floor owners agree to our terms legally? Which legal route can we take so that the ground floor owners could also surrender their house and give it to the builder like us? Qs 2-> They are asking for partition and they want their own share. We do not want to do the partition is their any way to avoid it? Qs 3-> If they file partition suit, how will the 1st flr be partitioned bcz as per the WILL of the first floor owner, her share will belong to 4 persons(2 owners of ground flr and 2 owners of 2nd flr)? Is there any legal way to partition the property because of the 1st floor amalgam issue? Qs 4-> If the ground flr owner gets their floor partitioned, can we still give the entire building to the builder legally? Qs5-> How long does this partition suit battle take, will it take years? How much money approx will be spent in this battle? Can this cost more than 10lakhs?
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1) you cannot force ground floor owner to agree to your terms
2) file suit for partition for division of property by metes and bounds
3) if first floor cannot be partitioned court would direct sale of first floor and sale proceeds still lit equally
4) you can sell your share to builder
5) suit for partition takes years to be disposed of
6) it would not cost more than 10 lakhs
Dear Client,
Question 1:
There are a few legal routes you can take to try to make the ground floor owners agree to your terms. One option is to file a partition suit. In a partition suit, the court will divide the property into shares for each of the owners. If the ground floor owners are not willing to agree to your terms, the court may order them to sell their share of the property.
Another option is to try to negotiate a settlement with the ground floor owners. This may be a more amicable solution, but it will require both sides to be willing to compromise.
Question 2:
If the ground floor owners are determined to get a partition, you may not be able to avoid it. However, you may be able to delay the process by filing a counter-suit. In your counter-suit, you could argue that the partition would be unfair or that it would not be in the best interests of the property.
Question 3:
The partition of the first floor will be complicated by the fact that the will leaves her share to four people. The court will need to decide how to divide the share so that each of the four beneficiaries receives an equal share. This may be a difficult task, and it is possible that the court will need to appoint a mediator or arbitrator to help resolve the issue.
Question 4:
Yes, you can still give the entire building to the builder even if the ground floor owner gets their floor partitioned. However, the builder will need to buy the share of the ground floor owner in order to acquire the entire building.
Question 5:
The length of a partition suit can vary depending on the complexity of the case. In general, it can take several years to go through the entire process. The cost of a partition suit can also vary depending on the complexity of the case and the fees of the lawyers involved.
1. As there is no legal partition to the building, and also as the proeprty is being occupied literally by three owners by an oral partition and on that basis all the three owners have occupied three floors on the understanding and amicable oral partition conditions, besides the properties were duly mutated in the names of the respective owners, the only option is to either go for an amicable compromise or to approach court with a suit to direct the reluctant owner to agree for the proposed redevelopment program, however if the ground floor occupant is refusing then the court cannot force her and the suit will be dismissed.
2. The property is already partitioned orally hence the current set up itself can be treated as partition, however if she wants proper partition by a partition deed duly registered then she may have to approach the court with a suit for partition.
3. The partition will effect floor wise and subsequently the first floor will be divided as per the subsisting Will, if it is enforced.
4. No, the builder cannot demolish the ground floor without the consent of the current occupier.
5. The time taken for disposal of the partition suit cannot be predicted owing to various factors involved in this and the costs also cannot be predicted because it involves the advocate's fee too.
You have raised several questions related to the property dispute that you are facing with the other co-owners of the building. I will try to answer them one by one, based on the information that I have found from various sources.
Ques 1: Is there any way by which we can make the ground floor owners agree to our terms legally? Which legal route can we take so that the ground floor owners could also surrender their house and give it to the builder like us?
Answer: The best way to resolve any property dispute is to reach an amicable settlement with the other co-owners. You can try to negotiate with the ground floor owners and explain to them the benefits of giving the building to the builder, such as getting new flats and some money. You can also offer them some incentives or concessions, such as a higher share of the flats or money, or a preference in choosing the flats. You can also involve a mediator, such as a mutual friend, a relative, or a lawyer, who can help you in reaching a compromise.
However, if the ground floor owners are adamant and refuse to agree to your terms, then you may have to resort to legal action. You can file a suit for partition and injunction in the civil court, seeking a division of the property according to your respective shares and an order restraining the ground floor owners from creating any obstruction or interference in giving the building to the builder. You can also seek a declaration from the court that you have a valid agreement with the builder and that the ground floor owners have no right to object to it. You can also seek damages for any loss or injury caused by their actions.
Qs 2: They are asking for partition and they want their own share. We do not want to do the partition is there any way to avoid it?
Answer: Partition is a legal right of every co-owner of a property. It means the division of property held by joint co-owners into different shares, so that they can enjoy exclusive rights over their property. Any co-owner can file for partition suit even if other co-owners are not in consensus. Each co-owner gets a share as per his/her legal entitlement.
However, partition is not always feasible or desirable, especially when the property is indivisible or inconvenient to divide, or when the sale of the property would be more beneficial for all shareholders. In such cases, the court may direct the sale of property and distribution of proceeds to the shareholders. This is known as partition by sale or owelty.
Therefore, if you do not want to do partition, you can try to convince the ground floor owners that partition by sale would be more advantageous for them than partition by metes and bounds (physical division). You can also show them that partition by metes and bounds would reduce the value of their share and create problems in maintenance and management of their portion. You can also cite some examples of similar cases where partition by sale was ordered by the court.
Qs 3: If they file partition suit, how will the 1st flr be partitioned bcz as per the WILL of the first floor owner, her share will belong to 4 persons(2 owners of ground flr and 2 owners of 2nd flr)? Is there any legal way to partition the property because of the 1st floor amalgam issue?
Answer: If they file partition suit, then the court will have to consider the will of the first floor owner and its effect on the shares of other co-owners. A will is a legal document that expresses a person’s wishes about how his/her property will be distributed after death. A will can be made by any person who is of sound mind and not under any undue influence or coercion. A will must be signed by the testator (the person who makes the will) and attested by two or more witnesses.
According to your information, the first floor owner made a valid will and registered it with the sub-registrar. In her will, she bequeathed her share in the property to four persons: two children of ground floor owner and two children of second floor owner. This means that after her death, her share in the property became vested in these four persons as per their respective proportions. They became co-owners along with other co-owners of the property.
Therefore, if they file partition suit, then these four persons will also have to be made parties to it. The court will have to determine their shares in accordance with the will and divide them accordingly. The court may either allot them separate portions on the first floor or give them equivalent value from other portions or from sale proceeds. The court may also consider their consent or preference in allocating their shares.
Qs 4: If the ground flr owner gets their floor partitioned, can we still give the entire building to the builder legally?
Answer: If the ground floor owner gets their floor partitioned, then it means that they have obtained a separate and exclusive title to their portion of the property. They will no longer be co-owners with other co-owners of the property. They will have the right to deal with their portion as they wish, subject to any legal restrictions or obligations.
However, this does not mean that you cannot give the entire building to the builder legally. You can still do so, provided that you obtain the consent of the ground floor owner and pay them their share of the value of the property. Alternatively, you can also sell your share of the property to the builder and let them deal with the ground floor owner separately. In either case, you will have to ensure that there is no breach of contract or violation of any rights of the ground floor owner.
Qs 5: How long does this partition suit battle take, will it take years? How much money approx will be spent in this battle? Can this cost more than 10lakhs?
Answer: The duration and cost of a partition suit depend on various factors, such as the complexity of the case, the number of parties involved, the nature and value of the property, the evidence and documents required, the court fees and lawyer fees, and the pendency and efficiency of the court. It is difficult to give an exact estimate of these factors without knowing the details of your case.
However, generally speaking, a partition suit can take anywhere from a few months to several years to be resolved. It can also involve a lot of expenses, such as court fees, stamp duty, registration fees, valuation fees, survey fees, lawyer fees, etc. The total cost can vary from case to case, but it can easily run into lakhs of rupees.
Therefore, it is advisable to avoid litigation as much as possible and try to settle the dispute amicably with the other co-owners. Litigation should be the last resort when all other options fail. Litigation can be time-consuming, costly, and stressful for all parties involved. It can also damage your relationship with your co-owners and create bitterness and hostility among them.
You can only request them and can’t compel them to surrender. You can execute a common development agreement with builder
Problem 1 & Ques 1: Convincing the ground floor owners to agree to your terms may require negotiation and agreement among all the co-owners. Legal routes could include trying to persuade them to agree through discussions, mediation, or arbitration. However, you cannot force them to agree if they do not wish to do so. The legal process for selling the property may require the consent of all owners, so cooperation is essential.
Ques 2: If all co-owners do not agree to a partition, it can be challenging to proceed without their consent. Legal action may be necessary, and a court may eventually order a partition if an agreement cannot be reached. Keep in mind that partitioning can be a lengthy and costly process.
Ques 3: If a partition suit is filed, the court will consider the shares of each co-owner as mentioned in the registered will. In this case, the first-floor owner's share would belong to the four individuals specified in the will. The court will then determine how the partition should occur based on these shares.
Ques 4: If the ground floor owner's floor is partitioned, it may not affect your ability to sell the entire building to the builder if the other co-owners agree to do so. However, this can be legally complex, and you should consult with a local lawyer to ensure all legal requirements are met after showing all the relevant documents.
Ques 5: The duration and cost of a partition suit can vary significantly depending on various factors, including the complexity of the case, court backlog, and the willingness of parties to cooperate. Legal proceedings can take several months to several years. Legal costs can also vary widely, but it's possible for the expenses to lakhs, especially if the case becomes protracted.
1. The most commonly used standard operating procedure in such cases in West Bengal is to get the property partitioned either amicably or through Court with metes and bounds and thereafter entire in to a Development Agreement with the Developer.
2. Thereafter the Promoter/Developer will negotiate with the legal heirs who are not willing for the development directly and get things done.
