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Partition of property and evict the tenant simultaneously

Shivendra Pratap Singh

Advocate

02/04/2022

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Question: Is it possible to partition the property and evict the tenant simultaneously? If not then how to evict the tenant? My late father died without a will regarding his properties, we are 5 legal heirs, I am the eldest son and want to sell my share of property but my younger brother who is living with his family and my mother doesn’t allow me to sell my share of property. Hence I want to file a partition suit by metes and bounds with separate possession but I have some doubts pls clarify the following points in detail. 

Some portions of property are occupied by tenants, those are from my late father’s time. Can I file suit without evicting them as other legal heirs don’t want to evict them as they even don’t want partition of property and saying that without evicting them I can not ask for partition, is it so? 

Anyhow they want to involve them so that a third party can be involved and things becomes complicated and cumbersome, I am in job living in other city and want to sell my share of property, I asked other legal heirs to take my share and give equivalent amount of market price even giving them discount but not ready. They are saying that I can not sell property, only can use property for myself. How is this being a legal heir? I have an equal share in the property and I need money for the purchase of a house for my son, who is living in a rented house in pune. 

Can I file suit for partition of property by metes and bounds making all legal heirs party without involving tenants in any way? will it not be disqualified on the grounds of bad suit? Any time limitations for filing a partition suit can be filed even after 12 yrs. My mother is a senior citizen 70 yrs old and has a share in the property being legal heir and not in favour of partition of property, will this cause in any way disqualification of suit. 

Property in Uttar Pradesh, what is the court fee for partition suite, whether it will be deposited in advance while filing suite or after preliminary decree or admissibility of suite before sending summons to defendants, if during proceedings if opposite party bring out some fraud will Or document what will happen to partition suite will it be converted into testamentary suite, then what about court fee which were deposited for partition suite, will it be refunded? 

Can my mother and sister surrender their undivided share in favour of sons and brothers for this it is sufficient to present an affidavit by their advocates during the proceedings of partition suite so that all three brothers claim for theirs 1/3 shares . Is it ok or any other formality or procedure is required. What will be  the court fee for partition suite in uttar Pradesh for the property of market value of rs- 1Cr. How much time it takes for the court to finally order the partition suit.

Asked from: Uttar Pradesh

You can file a partition suit without prior evicting the tenant from the property. All the legal heirs have equal share in the property. Hence, property will devolve on each heir without evicting the tenants. Currently, all the legal heirs have joint possession and ownership in the property.

They have equal share in the rental income. In the case of joint possession and ownership each heir shall get proportional share in rental income. So, in case of partition of property, each will get equal share in the property. If property is not divisible then the court will sell the property and divide the sale proceeds among the legal heirs.

If property is equally divisible then the tenancy will transfer along with the share. The tenants have rights in the property hence, you should make them defendants  in the partition suit along with all heirs. Not necessary to evict the tenants before filing a partition suit.

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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