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How to take possession over my father’s house?

Shivendra Pratap Singh

Advocate

09/01/2022

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Question: How can I take possession over my father’s house? Is there any legal formality before taking such a possession?

Facts: There is a house owned by my father. Both my father and mother expired. How to take possession over my father’s house? There are two daughters as legal heirs, me and my elder sister. The house is of G+1 and the built area of the floors are unequal. 

There was an attempt for an amicable settlement where I was given the option to take the floor that has 75% of constructed area as compared to the other one. 

Since I am not ok with it , I suggested a vertical partition leaving the common passage. But my elder sister and her husband did not agree. Now they occupied the entire house and enjoyed the rental income of the other floor as well. When we tried to enter the premises they locked the gate so we reached the police station. 

But it did not work as they were influenced by the local political power. We filed the partition suite and it is in progress. Is there any legal procedure that will help to enter the premises and stay there till the verdict for the partition suite is given.

Question from: Tamil Nadu

Advise: There is no dispute that it is your father’s self acquired property. He has died intestate i.e. without making a testamentary will. In this condition the legal heirs are entitled to inherit this house. He (your father) had two daughters hence, daughters are the legal heirs. 

How to take possession over father’s house?

In your case one daughter has illegal possession over the entire property. Therefore, you should initiate a mutation proceeding in the municipal corporation. This property should be mutated in the name of both daughters. Mutation is evidence of possession. 

When you move the mutation proceeding your sister cannot oppose it because she cannot deny your legal heirship. Collect the death certificate of your father and file an application for mutation. 

At the same time you should move an application under Section 145 of the Code of Criminal Procedure (crpc). That application will be filed in the court of the Executive Magistrate. Since, there is no dispute regarding the title and legal heirship hence, the Magistrate will give you possession over the house. 

You have filed a partition suit in civil court. It is a good decision because the civil court is competent to decide the right of legal heirs. In the same civil suit you should claim permanent injunction and declaration of your right. The proceeding under Section 145 crpc is fast and effective. Hence you should try that procedure and get possession over the house.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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