Legal Question in Real Estate Law in India

Respected Sir,

I would be thankful if you could give me advice in the following case of mine. I am desperate for help.

My grandmother's house in Bareilly, Uttar Pradesh, India was inherited by her six sons, including my father, after her death. Each son, therefore, inherited 1/6 share of the house. Her youngest son (my youngest uncle) bought 1/6 share each from my four other uncles which meant 4/6 share of the house and including 1/6 share of his own, he claimed 5/6 share of the house which he then sold to our next-door neighbour. However, there had been no division of the house and it was not specified between us that which portion of the house belonged to my uncle and which belonged to my father. When my uncle sold his 5/6 portions, he unilaterally showed that certain rooms of the house were in his possession which he sold to our neighbour. That included those rooms also which were in our possession but my neighbour threw out our belongings and claimed possession of his so-called 5/6 portion of the house. We approached the police but the inspector did not lodge our complaint and after ten harrowing days, we had to leave our house and all our belongings behind and flee from Bareilly.The inspector had threatened that he would lodge a complaint against us on behalf of our neighbour and we we would be in trouble then. We had to leave Bareilly and came to Mohammdi, a tehsil in Kheri district of Uttar Pradesh, where my married sister lives.

However, my uncle and my neighbour have committed a fraud in the registry deed. Attached to my grandmother's house was another two-room house that also belonged to my grandmother and it was also inherited by her six sons. That two- room house has a separate registry and it was bought by my grandmother some years after the first house. Both the houses were bought from separate owners. None of the six sons of my grandmother have sold any of their 1/6 portion to anybody. I mean to say that when my youngest uncle bought 4/6 share of the first house from my four uncles, he did not buy 4/6 share which my other uncles owned in the second house. The registry deed between my uncle and my neighbour clearly mentions that my uncle is selling the 4/6 share he bought from my other uncles and his own 1/6 share of my grandmother's first house to my neighbour. The registry deed mentions the old registry on the basis of which my grandmother bought the first house only and does not mention the second house at all.

However, in this registry between my uncle and my neighbour in Bareilly, my uncle has shown both the rooms of the second house as having been sold by him. This means that my uncle has sold the second house of my grandmother, in which he owned only 1/6 share, without even buying the 5/6 share from his other brothers. This also means that he has sold off to my neighbour my father's 1/6 share in the second house fraudulently.

After my grandmother's death, her sons did not obtain any succession certificate from the court and all the registries between my uncles have been done without the succession certificate.

This last deed of registry between my youngest uncle and my next-door neighbour which I mentioned in detail above, was done on 2 January, 2007 and my family came to Mohammdi, Kheri on 14 January 2007. Since then, we have been living here with my sister.

My question is this: Is there a law in India that a registry can not be challenged in court after three years? Since the registry was done on 2 January, 2007, three years will be completed on 2 January,2010. Will there be a time-bar after that? Or, can we still challenge the registry after the expiry of three years. After coming to Mohammdi, my father suffered from slip-disc and had to take bed-rest for several months. That is why we could not pursue the case.

Secondly, can we file a criminal or civil case against my uncle and my neighbour of committing fraud against my father by selling the 1/6 share which my father owned in the second house?

Thirdly, can my uncles sell their share in the house to my youngest uncle without obtaining the succession certificate? Is such a sale-purchase valid? Is the registry between my uncle and my neighbour valid even though my uncle has not obtained succession certificate?

I request some further advice from you. Can an unpartitioned ancestral house be sold outside the family? ( In my case, the first house bought by my grandmother of which 5/6 share has been sold to an outside stranger). In the Sharda vs. Manohar (2004 (17) all India Cases) the High Court gave the ruling that no co-owner can sell his share without partition. The buyer does not get any right. Does this judgement stand good in my father's case? Or are there jugdements contrary to this also?

Can we also plead that since this was ancestral property, my father owned the right to buy the 5/6 share first from my uncle rather than my neighbour? Does my father have the first right to buy the 5/6 share of my uncle from my neighbour also ? In the Mangu vs. Others Case no. 2005 ( 60 ALR 789 ) , the Allahabad High Court ruled that if any co-owner wants to buy the share of an outside stranger, then he has the right of Pre-emption under the Indian Partition Act 1993. What is the Right of Pre-emption?Can my father use this ruling to his benefit? Please advise.

How shall we plead the case in court?This was my father's ancestral property and all my family's belongings have been left in the house. I want to have my house back.

Respected Sir, I would be very grateful if you give an early advice.

Thanking you.

Yours sincerely,

Sonarika Kapoor

Purvi Lakhpeda, Near Kotwali, Opposite CO Office

Mohammdi, Kheri, Uttar Pradesh

E- mail: [email protected]

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