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Author Topic: partition of ancestral property  (Read 1565 times)

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Offline leonardjoseph2003

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partition of ancestral property
« on: September 11, 2015, 12:28:47 PM »
My grandfather i.e.my mothers dad who had 6 daughters and 2 sons,died intestate in july 2004 leaving behind 15 acres 3 guntas of land in rural bangalore. immediately after my grandfathers death in oct 2004, 2 sons and one daughter made a partition deed i.e. divided the property among themselves as 7 acres 5 guntas for one brother, 7 acres 5 guntas for another brother and  33 guntas for the sister.
In 2005 one of the brother sold 2 acres 5 guntas to another third party.
In 2008 one of the remaining sisters filed for partiotion in rural court.
But again in 2010 the first brother again sold one acre to another fourth party, and second brother sold 3 acres 5 guntas to the same fourth party when the case is still pending.Each having left with 4 acres each.
The judgement was partly decreed on july 31 2015, saying the plantiff should get 1/8 th share but only from the remaining 12 acres 5 guntas, and holds the third party as a bonafide purchaser and hence he is a legal purchaser.
Now total property left is 8 acres 33 guntas only.
My doubts?
1)how is this even possible when the partiton deed itself is not valid.
2)how can he be a bonafide purchaser without all the legal heirs opinion.
3)when the property is in court how can a fourth party buy a part of the property.
4>should we appeal in lower court itself or go for high court.
5>how can we avoid further alienation of property and how to hold the partition and the 3 sale deeds null and void,?     can we seek a partition?, whether in lower court or high court?



Offline adv.amarnath

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Re: partition of ancestral property
« Reply #1 on: September 11, 2015, 01:22:02 PM »
Considering your statements, I am answering your queries as follows:

Answer to the query no.1
What possible ? Please make your query clearly.

Answer to the query no.2
Yes, he is a bona fide occupier as he has purchased the property after paying proper stamp duty and registration fee from the rightful joint-owner of the property. Apart from that others co-owner has not raised any objection or filed a case of pre-emption.

Answer to the query no.3
As there is no order of injunction restraining the all co-sharer of the property from selling/ transferring and/ or alienating the suit property, so the sell to third party is absolutely valid and genuine.

Answer to the query no.4
What appeal and against which order you are asking. If you are think or asking about the legality of third party's purchase, then please leave this idea.

Answer to the query no.5
You have to take injunction order in respect of the entire and you have to made third party in the partition suit. There is no scope to declare null and void of those sale deed. But you can file a case for Pre-emption which will be time waste for you. Lower court is correct court to entertain partition suit.

SUGGESTION

If you have any present lawyer, I will ask you to change your present lawyer and appoint/ engage a senior advocate. He has misguided you. He could have filed a petition for ad-interim injunction and get a restraining order. If he did it then other's heir could not able to sale to third party.

For further suggestion and advice in details, you can contact me.
Regards,

Amarnath Sanyal
Advocate
Email - adv.amarnath.sanyal@gmail.com
Mob - 09830303322

Offline kphk

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Re: partition of ancestral property
« Reply #2 on: September 20, 2015, 10:36:35 AM »
1. You are right. the partition deed is not valid in law and they are entitled to only equal share and not any excess. It can be questioned in the court of law by filing a partition suit.

2. No he is not a bonafide purchaser and the property purchased by him can also be question in the partition suit.

3. Exactly, when the property is in litigation, the doctrine of lis pendence under Sec.52 of the Transfer of Property Act, 1882 will be applicable to anyone purchasing that property and they will be subject to the result of the dispute.

4. I assume you would have only got preliminary decree, so you still have a long fight to secure final decree.

5. If you can tell me where you are from and your approximate value of the property, I will tell you which court you will need to approach.

Offline adv.amarnath

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Re: partition of ancestral property
« Reply #3 on: September 20, 2015, 08:34:53 PM »
Even the presence of  the principle of Doctrine of Lis pendence, one person have to get injunction order under Order 39 Rule 1 and 2 read with Section 151 of CPC, else nothing will give effect of that doctrine practically. Go through the Section 42 of TP Act.
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Amarnath Sanyal
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Offline kphk

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Re: partition of ancestral property
« Reply #4 on: September 20, 2015, 09:20:53 PM »
Lol! Section 42 is not at all relevant ! By getting an injunction order  u can bring the defendant under the contempt jurisdiction which is not the case in sec.52. That will be a deterant. Your statement means section 52 by itself is of no use, which is completely misunderstood.

Offline adv.amarnath

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Re: partition of ancestral property
« Reply #5 on: September 21, 2015, 09:23:15 AM »
Buddy, please check Section 44 of TP act... It was inadvertently typed from smart phone. Nothing to LOL....
Regards,

Amarnath Sanyal
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Offline kphk

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Re: partition of ancestral property
« Reply #6 on: September 21, 2015, 10:50:58 AM »
Section. 44 clearly states only the entitled share can be alienated. I do not disagree with this at all. Moreover, when a person clearly recognizes other person's joint share over some property, then injunction will not be granted against the other person preventing him from alienating that share. However, if there is a dispute regarding the share, then till the disposal of the suit, the court may injunction against alienation. Even, if the court does not grant injunction, the doctrine of lis pendence always acts if the property is sold to some third party pending litigation, and the share sold will consequently be subject to the decree of the court. Assuming one of the parties sold more than what he is legally entitled to, then the sale in excess of such entitlement will be cancelled and handed over to the right party.

Offline adv.amarnath

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Re: partition of ancestral property
« Reply #7 on: September 21, 2015, 07:16:13 PM »
Have you did these type of cases...where court put injunction order on the suit property without praying any injunction order (O39 R1 and 2) by the either party of the suit. If so, plz send me the scan copy of order sheet.

You are too junior buddy, so I am not going to waste my time by teaching you a law and its application. You carry on what you know .... Bright future you have
Regards,

Amarnath Sanyal
Advocate
Email - adv.amarnath.sanyal@gmail.com
Mob - 09830303322

Offline kphk

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Re: partition of ancestral property
« Reply #8 on: September 22, 2015, 07:01:04 AM »
Sorry to trouble you with too much law Mr. Senior, I did understand your handicap. Thankyou for wishing me. Even if you do not teach me, I hope u gather the patience to teach others.  :)

 

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