B V Sreedhar
Asked November 03, 2016

Property Dispute- Legal questions

  • 1 Answer

Brief History of the dispute: There were 4 brothers, say A,B,C and D. They got allotted land of 5.30 acres as occupants under land Reforms-in the order it was mentioned as 1.17 acres each for A,B and C and 1.19 acres for D continuous in the same survey number. But it was a joint holding by A,B,C and D as partition by metes and bounds was not effected by 4 brothers among themselves with boundaries for identifying each person's portion. Brother 'B' got his portion of 1.17 acres converted by Deputy commissioner from Agricultural to Residential purpose and formed a layout for residential purpose. Necessary layout plan approval was also obtained from village panchayat for about 50 sites with approximate 1200 sft each. Here when we calculate, it can be noticed that he got the layout plan approval for more than 1.17 acres which means he must have included other brothers portion also while forming the layout even though DC conversion was for his portion of 1.17 acres only. This Layout was developed in 1991. As there was no written partition among 4 brothers, it was difficult for the buyers to make out their portion of site falls under which brother's portion. 'B' had given his GPA to his son to form the layout and sell the sites. So land conversion, layout plan approval all in the name of 'B' through his GPA holder son. I purchased one site in 1991 executed by 'B' through his GPA holder vide Regd Sale Deed. In addition to this execution of sale deed by GPA holder I also got stamped, notarised confirmation note from the principal, 'B' regarding this sale transaction. I constructed house in 1991-92 and undertook addition constructions after that also twice. I got all necessary plan approval, construction license, electricity connection, khata transfer in my name and house tax being paid since 1992 till date by me only. It is more than 24 years now since I constructed my house and in peaceful , open and continuous possession. At the time of construction of my house or later at any stage I did not face objection, hindrances or obstruction from any other brothers or their legal heirs. Now, all the 4 brothers are no more. As I have mentioned earlier, all the 4 brothers were allotted land in the same survey number but during their life time written partition by metes and bounds with boundaries for each brother's portion for identification was not done. There might have been an oral understanding among these 4 brothers FOR THE FORMATION OF LAYOUT AND SELLING OF THE SITES as the layout plan covers more area than only B;s portion of 1.17 acres. Now, in 2011, one daughter of 'C' ( who died in 1993 itself ) has filed a partition suit and she has made all the legal heirs of A,B,C and D as the defendants. She is one of five legal heirs of her father, 'C'. She has stated that her father's property was not partitioned when he was alive and has prayed for partition of the property in to 4 portions by metes and bounds to recognise her father's portion and then out of his father's portion recognised, she has demanded 1/5th portion as her portion from the court. The layout formed by 'B' through his son GPA holder is fully developed layout and most of the residents purchased sites from the GPA holder and constructed houses with no objection from anybody till 2011. Most of the residents have been in possession of the site and house for more than 12 to 15 years. The lady. one of the legal heirs of 'C' simply has filed suit for partition as mentioned above and not mentioned anything amount the layout formation and occupation of layout by other people for more than 12 to 15 years. HER INTENTION MAY TO OBTAIN COLLUSIVE DECREE BY COLLUDING WITH OTHER DEFENDANT LEGAL HEIRS to demand money from the residents of the layout due to spurt in recent real estate prices. Lady's father , 'C' had 5 legal heirs - wife, one daughter and 3 sons. C's wife and one son have died after the date of filing suit and now one daughter and 2 brothers only are alive (C died in 1993 itself ). Here one interesting thing has happened. one son died in 2010 and he was survived by his wife and one minor daughter. The daughter who has filed partition suit has made this deceased son's wife and minor daughter (with m/g) as two of the defendants (suit filed in 2011). This deceased son's wife along with her minor daughter have left the house now without informing anybody and their whereabouts are not known as per FIR lodged with police. This FIR and complaint was given by alive 2 sons of 'C'. In July 2016, alive legal heirs of 'C' have made partition among themselves and registered the same. In July Wife of 'C', daughter and 2 sons were there and all these four signed the partition deed ( WITHOUT THE SIGNATURE OF LEGAL HEIR OF ONE DECEASED SON ) and registered. They have not allotted any portion to the deceased son's legal heirs as they are missing ( No further information from the police about the missing complaint ). Wife of 'C' (father of lady who has filed suit is no more - died after executing and registering the partition deed) In the partition deed, they have allotted my site/house number to the lady who has filed partition suit and it is getting reflected as transaction in the EC against my property number. Please note that the lady has filed partition suit for partition of her father's portion first and then her 1/5th share. Without any act from the court they among themselves partitioned now without the signature of the legal heir of deceased son. This is causing concern for me as encumbrance is being shown in the EC against my property. MY QUESTION IS AS FOLLOWS: 1) Is this partition deed executed valid for the following reasons: A) First of all father 'C's portion is not identified and partitioned by metes and bounds first ( as requested by themselves in the court) before going in for further partition among themselves for their portion. There is no record to show that the site where my house situates belong to the portion of father 'C'. B) They have left out the deceased son's legal heirs, his wife and minor daughter from the partition deed as she is missing. Is this valid without their signature. C) If that lady and minor daughter is missing and complaint is lodged how to recognise and set apart their portion, right/share in the property - is it should be through the court. D) I have been in possession - open actual and peaceful of my house property for about 25 years now. What about my legal fate, if they are able to get collusive decree. E) The lady who has filed partition suit was about 16 years when I purchased and constructed house. But, she filed partition suit after about 18 years after attaining majority. Is she barred by limitation in filing partition suit ?. F) When I purchased and constructed house, the lady's father was alive and there was no objection whatsoever from him at that time or later. I constructed in 1991 and he died in 1993. Under this circumstance, does the lady has any legal right over my property if she claims on the basis of this latest partition deed among themselves done in July, 2016 where in my site portion is mentioned in the partition deed as her share. G) Is that partition deed legally valid and sustainable in the eyes of law for the reasons mentioned above. Kindly give your advise in detail. with regards, BV Sreedhar 8762059754

Answer 1

  • The partition deed may be held invalid in the court of law due to the reason that C’s property is not well identified, which needs to be settled between all the legal heirs of the four brothers: A, B, C and D.
  • Regarding the missing wife and minor daughter, they may approach the court for cancellation of such partition deed and for claiming their share of the property. However as per the Indian Evidence Act, 1872,  if they remain missing for a period of seven years, i.e, if they are not heard of by those who would naturally have heard of them if they had been alive, including C’s family members, they may be considered dead unless proven otherwise. In such a scenario the partition suit may be considered to be valid as far as the question of the missing members goes.
  • As stated by you earlier, proper identification and demarcation of the property by metes and bounds would be needed in order to recognise the individual shares over the property in question.
  • Since you have been residing in the said property for a period of about 25 years now, you are protected by the principle of Adverse Possession under the limitation act. As per Part V of Limitation Period Schedule [1]the period of limitation is twelve years for the  possession of property to become adverse for the defendant, which would be you in this case. This implies that the property legally belongs to you now and C’s daughter cannot claim share over your property.


    [1] Available at: http://www.vakilno1.com/bareacts/limitationact/limitationact.html#PART_V_8211_Suits_relating_to_Immovable_Property

    Agree Comment 0 Agrees about 5 years ago

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