Brother asking share in ancestral property. How to avoid partition?
My grandfather had two sons. One was my father and second was his elder brother. My uncle had bought a land after selling an ancestral land for Rs.6000 in 1965. After sometime my father gave him Rs.9000 and built a big house by his own income on that land. On paper the land was still on the name of my uncle.
Now my cousins are asking for their share in that property. We have ancestral land and a house in village too. My question is that what should we do to not divide our property.
A pre-requisite condition required for a property to be Ancestral property is that it should be owned by the great grand father followed by grand father, father & present generation all in this linear generation living & enjoying the property.
The property should not have ever partitioned & share in it distributed to any of the Hindu Coparceners as in any linear generation as mentioned above, in other words, it should be intact single property which is being used jointly by all members of the Hindu Joint family. Therefore, all property inherited by a male Hindu from his father, fathers father, or fathers fathers father, is ancestral property.
The essential feature of inheritance of ancestral property according to the Mitakshara law under Hindu Succession Act is that man inherits from any of his three immediate paternal ancestors, namely, his father, fathers father and fathers fathers father is ancestral property as regards his male issue, and his son acquires jointly with him an interest in it by birth. Their rights attach to it at the moment of their birth.
Therefore, if your property falls within such ambit then you are entitled for the share in your Grandfather’s property. Furthermore, in view of above mentioned, the basic proposition is that the grandson acquires a right in the property of his grandfather at his birth and has a right of inheritance jointly with his father at the time of succession. Hence, you will be entitled for the share in the property.
In view of aforesaid, you can at anytime seek a partition of your and father’s share. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a Court, a preliminary decree is passed determining shares of the members of the family.
The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition.
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