sivapckumar1963@yahoo.com
in Civil Law
Asked January 22, 2016

Family property suits

  • 1 Answer
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      My paternal grandfather (GF) and his 2 brothers were divided their ancestral properties in the year 1930 and executed unregistered partition lists, from then they living independently, after some time it was impounded with sub-collectors office. After some time they lost impounded partition lists and again they executed registered partition deed in the year 1952 in it they stated for the evidence of their children in future the partitioned was affected in 1930.      Before partition my GF’s elder brother purchased house property in the year 1923 and mentioned his self-acquired in the joint family partition deeds in the year 1930 and 1952. After joint family partition in 1930 my GF independently purchased with his own funds, 20 lands different survey numbers and some house properties at civil court open auction in the year 1933 which includes entire suit land.  My GF alone sold most of the properties before 1972 which purchased in 1933.      My GF’s elder brother (Donor) executed registered GIFT DEED without any right, title, possession and enjoyment in the year 1984 in favour of his daughter and son-in-law conveying 1/3 share in only 2 survey numbers by stating it is joint family property but his younger brother not claimed any lands purchased in 1933 by my GF.      The Suit lands not at all mentioned in the registered partition deed executed by donor and his sons in the year 1953 and in it also mentioned that 3 brothers were partitioned in 1930, the same he was admitted in the file of AP Land Reforms declaration in 1975 and he (Donor) has not claimed suit property in his said declaration.      After demise of my GF all his legal heirs were divided and executed registered partition deed in 1987 which includes suit lands and other properties. The suit lands in the name of my GF and his family in all the revenue records since from 1933 in our possession and enjoyment, done or donor never in possession at any time.      The suit lands mortgaged in favour of co-operative bank by my father and GF obtained loans by way of registered mortgage deed in the year 1960.     In 2003 the done filed suit against my father and my aunts in civil court for declaration for right, title and division.     Q1. Kindly tell us merits and de-merits of the suit to protect our rights in suit lands. Q2. Kindly refer Andhra HC and Supreme Court related judgments to suit.

Answer 1

Default avatar
Atisha Sisodiya
From the facts given in the question, it is clear that for the ancestral property (joint family property) is to be divided amongst the three brothers -
  • B1 (Donor)
  • B2 (Grandfather)
  • B3 (The other elder brother)
The suit is between the Elder brother (B1 - who is the donor) and the father and aunts (B2 - Grandfather's son and daughters) The subject matter of suit is the suit land. The Joint Family property partition of the ancestral property took place twice. Once in the year 1930, when they executed unregistered partition lists (which was more like a family arrangement) and once in the year 1952 when they executed registered partition deed. So each of the three brothers has 1/3rd share in this joint family property which is the ancestral property. B1 has filed a suit against B2's son and daughters in Civil Court for declaration of rights, title and possession on suit property which is part of 1/3rd share from 1930 and 1952 partition deed. The 1/3rd share of Grandfather's property consists of suit property also, which is in question. The merits of the case are: (1) The suit land in the name of the Grandfather and his family is in revenue records since 1933 and they are in possession of the same. B1 (Donor) never had possession of the suit land. Hence, the property and possession of the suit land are in Grandfather's name. (2) The Grandfather's family have had legal transactions with the bank. They had mortgaged suit lands in favour of Cooperative Banks and the Grandfather had obtained loans by way of registered mortgaged deed in the year 1960. (3) The partition deed between the three brothers clearly mentions that partition had taken place in the year 1930 and there is no mention about the suit lands in the registered deed executed by B1 and his sons. (4) The Donor – B1 has admitted about the partition in the file of Andhra Pradesh Land Reforms Declaration but has not claimed suit property in the said declaration. In the Supreme Court case of K. V. Narayanaswami Iyer vs K. V. Ramakrishna Iyer And Ors which was decided on 26 March, 1964[1] There were three brothers R, N and M who were members of a joint family property, with the eldest brother R being the Karta after their father's death. Certain properties were acquired by him for the joint family. After a few years, relations between the elder brother R and his younger brother N became strained and N filed a suit for partition claiming :
  • the original properties of the family property and
  • the properties acquired by the Karta, i.e. R
The Court held that when properties are acquired in the name of a joint family member (in this case R) and the joint family has sufficient nucleus for acquiring it then the property should be presumed to have been acquired from out of the family funds. Here, R had acquired 25 acres of property between 1911 to 1931 in the name of joint family so it is liable to be partitioned. But, in your case, the Grandfather had independently purchased with his own funds properties that were not part of the joint family property and hence, B1 cannot acquire a share in that. B1 in the instant suit has filed a case for  for declaration of rights, title and possession on suit property which is part of 1/3rd share from 1930 and 1952 partition deed which belongs to the Grandfather and is further not liable to partition. [1]1965 AIR 289
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