89+ Lawyers are online 
Can brothers claim equal share in deceased father's property & FDs
11-Feb-2023 (In Property Law)
My father died recently. My mother is a nominee in all FDs of post office accounts and properties. My brother has threatened my mother, who is a mental patient and has kept her with him. I am a legal heir and have a legal heir certificate too. When I asked him about sharing property, he kicked me out of the house. Now what should I do for the sharing of the property?
LEGAL PROVISION PERTAINING TO PARTITION / SEPARATE POSSESSION PF SHARE.
Rule 18 of Order 20 of the Code of Civil Procedure (`Code' for short) deals with decrees in suits for partition or separate possession of a share therein which is extracted below:
"18. Decree in suit for partition of property or separate possession of a share therein.--
Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, --
(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;
(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required."
ANSWER TO THE QUERY:
1. The best solution in such cases is to file a suit for partition.
2. If your brother and mother are opposed to partition, you can file a suit for "Separate Possession of Share."
CONSEQUENCE:
1. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds.
This involves three issues:
(i) whether the person seeking division has a share or interest in the suit property / properties;
(ii) whether he is entitled to the relief of division and separate possession; and
(iii) how and in what manner, the property/properties should be divided by metes and bounds?
2. In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession.
3. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as `decree' under Order 20 Rule 18(1) and termed as `preliminary decree' under Order 20 Rule 18(2) of the Code.
4. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2).
Rule 18 of Order 20 of the Code of Civil Procedure (`Code' for short) deals with decrees in suits for partition or separate possession of a share therein which is extracted below:
"18. Decree in suit for partition of property or separate possession of a share therein.--
Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, --
(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;
(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required."
ANSWER TO THE QUERY:
1. The best solution in such cases is to file a suit for partition.
2. If your brother and mother are opposed to partition, you can file a suit for "Separate Possession of Share."
CONSEQUENCE:
1. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds.
This involves three issues:
(i) whether the person seeking division has a share or interest in the suit property / properties;
(ii) whether he is entitled to the relief of division and separate possession; and
(iii) how and in what manner, the property/properties should be divided by metes and bounds?
2. In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession.
3. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as `decree' under Order 20 Rule 18(1) and termed as `preliminary decree' under Order 20 Rule 18(2) of the Code.
4. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2).
Helpful?
19+
19+
Adv. Ajit Wagh
Delhi | 25+ Answers
CONTACT NOW
There are many facts that need consideration. If someone can kick you out of your family house also needs consideration based on the materials and circumstances of your case and you seeking help and advise online won't help. You need to consult an advocate first and that too as soon as possible.
Helpful?
16+
16+
Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at lawrato.com and has been responded by one of the Divorce Lawyers at lawrato.com to address the specific facts and details.
Connect with top Property lawyers for your specific legal issue
No Comments! Be the first one to comment.
"lawrato.com has handpicked some of the best Legal Experts in the country to help you get practical Legal Advice & help."
