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Indian Law/Division of property

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QUESTION: Dear Arun,

My situation is as follow:

My grandfather died in year 1984, and left a big house in city and land in near by village. My grandfather has 7 brother including my father. Though my grandfather has written a will, but it never put in forward by one of my uncle, and now he claims its non-existence. In 2005, four of my uncles sold the part of our house without taking consent of others, though we did not file any case at that time. This year, my other two uncles sold the part of house to same buyer leaving the part in which my family lives in. We live in 1st floor of two storey house, whose ground floor has many shops with high market value. All the shops has been given away. We occupy four rooms of which two don't have any land underneath. My questions are:

1. How the division of a property is done under our law? Is it divided by area or current market value?

2. Can we claim the 1/7th of land on which house was built, without giving away the portion we currently occupy?

I am looking forward to your suggestions, thanks for your time.
regards

ANSWER: If a man dies intestate, then after his death, his wealth passes to his legal heirs preferably class-I comprising widow,sons/daughters etc.and otherwise to class-II comprising his father, brothers/sisters etc.on the basis of the Succession Certificate issued by the court.However, if he has made a WILL, then his wealth will be distributed to persons as per his last desire made in it.For the purpose of execution of the WILL, it is required to be probated.
Once the property is sold through a validly executed and registered Conveyance-Deed its ownership passes to the transferee.Further, only the true can transfer ownership of the property and no one else.
In view of the above,in the instant case ,due to not getting the WILL probated,after the death of your grand-father, his wealth devolved upon his wife and children equally provided a Succession Certificate was issued by the court.You have not mentioned whether your grand-father left his wife and children.If yes, then they will get equal shares in the said property and none of his brothers shall be entitled to it.
Further, if your uncles sold any property belonging to them by complying with the law, then the transfer will be valid.Exact position can be ascertained by verifying the title-deed of the property through an advocate.Further if neither any probate was done of the WILL nor a Succession Certificate was obtained from the court, then there will be no transfer of property.
Apparently, you do not have any share in the property.However,you may consult a lawyer with full facts as well as relevant documents and follow his advice on the matter.

---------- FOLLOW-UP ----------

QUESTION: Dear Arun,

Thanks for your detailed answer and time. Though i made a typing error while framing the question. In fact, I wanted to say that my grandfather has 7 children (not brother) including my father and rest is same. My question in large is 1)how is a property divided under our law? Is it divided by area or current market value?
2) Since there was no legal division of house done or NOC taken, is the transfer valid or one can challenge it?

i again apologize for my mistake, and appreciate your patience.
regards

Answer
In the instant case ,due to not getting the WILL probated,after the death of your grand-father, his wealth devolved upon his wife and children equally provided a Succession Certificate was issued by the court.The said division is made area wise.If no Succession Certificate was issued,then the property will devove upon persons mentioned in the WILL provided it is probated.If the transfer was made by your uncle without valid ownership then it will be absolutely void because under law only the true owner can dispose off the property and no one else.For example,I have no authority to sell property belonging to you.Therefore, if your uncle has sold any property belonging to you,then you have a valid ground to challenge it before the court.Sale-Deed can be executed only by the true owner or his authorised representative through a power of attorney.Apparently, you have a strong case.However, please take apprpriate action on the matter by consulting a suitable lawyer.

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Arun Kumar Maitra

Expertise

Contract Law,Companies Act,Sale of Goods Act,Partnership Act,Negotiable Instument Acts,Constitution of India,Arbitration Act,Consumer Protection Act,Maternity Act,Payment of Gratuity Act,Payment of Bonus Act,Shops & Establishment Act etc.The answer to the grievance of the particular online query depends on the facts of the particular case and law applicable to it.However,my comments relating to the various queries raised through the "All Experts" should not be treated as legal advices and should not at all be relied upon.I do not accept any responsibility for them.They will only give you some ideas about the probable merits of your cases.Ultimate actions/decisions in the matter may please be taken in consultation with the Legal Experts in the relevant fields.My purpose of giving the comments is to increase my own knowledge on the subjects and share it with others.It is purely of academic interest to me. I strongly feel the more knowledge we share,the more we shall be able to learn because there is neither any age nor any end to learning.

Experience

I have experience of dealing with matters relating to holdings of board/general meetings,maintenance of statutory registers,filing of necessary returns with the RoC,obtaining licenses for import,replies to Parliament Questions,dealing with the Parliamentary Committees,appearing before various courts to defend my employers,filing affidavits/counter -affidavits,preparing written statements/re-joinder,giving advice to management on complicated legal issues,preparation,drafting and vetting of contracts etc. I have more than 35 years of experiences to deal with the Company Law and Other Commercial Laws of leading Organisations in the country both in Public as well as Private Sectors.

Organizations
Member,Inst. of Chartered Accountants of India Member,Inst. of Company Secretaries of India; Member,Bar Council of India Member,All India Management Association Member,Delhi Management Association Ex. Vice-Chairman,Durgapore Chapter of the I.C.A.I. Expert ,CA Club India Expert ,Lawyers Club India Expert,AllExperts Ex. Faculty ,I.C.S.I as well as I.C.W.A of India Retd. Co. Secy. & G.M.(Law)/NFL(A Mini-Ratna A Schedule Central P.S.U.),New Delhi Ex.V.P.(Secretarial Dept.),Jaiprakash Associates Ltd. Ex. Co. Secy.,MAMC(A Govt. of India Enterprise),Durgapore

Publications
Nil.

Education/Credentials
M.Com;LL.B;A.C.A;A.C.S.

Awards and Honors
Obtained ''A'' Grade Certificate in the Parliamentary Procedure from the Secy. General of Parliament in 1994-95.It was in connection with a training course conducted by the BPE for PSU Executives.

Past/Present Clients
I am presently working as a Company Secretary in Old World Hospitality Pvt. Ltd.located in Delhi.It is engaged in Hospitality Industry.It has Units in India and abroad.It has been given the responsibility to look after operation & Management of ''India Habetat Centre'' located at Lodhi Road,New Delhi.

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