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Introduction
Partition is the division of a property to give it to those people who have a share in it. But it’s easier said than done. You are entitled to a partition in your Father or Mother’s property only when they don’t make a Will, in which case you will get equal share with the other siblings. But if a Will is made by the deceased Father or Mother, then the Will decides what will be each child’s share.
But disappointingly, this feature of the Will is used by a brother/sister to get hold of the property and to deny to other siblings their share in the said property by alleging that their parents have given all the property to him/her through Will.
As these kinds of cases are only on the rise, in this article we will try to convey to our readers as to how they can save themselves from these false pleas and get justice and their share in the property, if their brother/sister denies it to them under the garb of a forged Will. So let’s begin.
Brief Facts
Let’s say you have three other siblings. When your father died he left a DDA Flat in Jangpura. At present one of your brother’s, namely X, lives in the property. As you also have a share in the property left by your Father you ask your brother X to give you that share in the property to you. X outrightly denies giving you any share, stating that your Father made a Will in which he gave the Flat to him.
What is the effect of a Will on the Share of a Brother or Sister?
This is the general trend, especially in Delhi, that one of the brother says that the deceased Father have executed a Will in his favour whereby all the paternal property is given to him. But why does he say so? For that one has to understand how a property is devolved after the death of a Hindu person.
When a Hindu Male dies without making a Will his property is divided amongst his legal heirs in terms of Section 8 and Class I of the Schedule to Hindu Succession Act, 1956. These legal heirs are the mother of the deceased, the wife of the deceased and his children including both sons and daughters. In case of a Hindu Female, her children and husband will be the legal heirs as per Section 15. Legal heirs are the persons amongst whom the property is to be distributed.
Partition is simply equal division of a property to those people who have a share in it. So, let’s say in the above mentioned case there are 4 siblings and one mother, the Flat in Jangpura will be divided in 5 portions, giving you 1/5th of the property. This is called Intestate Succession.
Opposite to this is the Testamentary Succession. Let’s say before his death your Father makes a Will stating that all his property will be given to X, one of your brothers, then this will trump the intestate succession rule and he will get the property fully. In such a case Indian Succession Act, 1925 will come into picture and you will get nothing. (I have explained the intricacies of a Will in this Article).
Many a times Will is used to defeat a Partition Case
But it is stated with great disappointment that where there is no Will, even then the party which is in the occupation of the property sometimes create a forged and fabricated Will in order to either delay the case or usurp the property. But how so?
Let’s say your brother denies you the share in the Jangpura Property? Then you will file a case in the Court to divide or partition the property and give your 1/5th share in the property to you. Now when your brother X comes to court he will say that he has a Will in his favour. Everybody knows that a Civil Suit takes 5-7 years for its disposal and hence even if at the end of the case the Will is not found genuine, X will be in occupation and possession of the property for all these 5-7 years. He may lease the property and enjoy the rent for all these years without giving anything to you or your siblings.
Now let’s see how to get justice in these circumstances.
What to do to get Justice
These are some of the steps you must take in case you do not want to lose your share in the property. We are assuming that the Will is forged.
First of all you have to out rightly deny in the Court that there have been any Will made by your parents and ask X to produce the Will in the Court on the basis of which he is denying you the share in the Flat. Now X will either file the forged Will in the Court or he will say that he is not in the possession of the Will as it have been lost.
File a Complaint
In the former case as you know the Will is forged, you should immediately file a complaint under Section 467 and 471 of IPC, 1860. According to these sections if a person files a forged and concocted document in the Court he is liable to be jailed for 10 years or full life. In the same manner you can file a Complaint in the Court under Section 340 of Cr PC itself and the Court will start proceedings against X.
Serve an Interrogatory
In the latter case i.e. when X says he have lost the Will, you have to simply serve an interrogatory on X asking him to name the witnesses to the Will. Interrogatories, which are dealt with in Order XI of Civil Procedure Code, 1908, are questions asked by one party to another in a Court case which the other party have to answer mandatorily. As per Section 63 of Indian Succession Act, 1872 a Will have to be attested by two witnesses who must have seen the Testator (i.e. your Father/Mother, who made the Will) sign the Will or put his thumb impression on the Will.
X might say in the Court that the Will is lost, but that does not stop him from naming the Two Witnesses to the Will. So by this interrogatory you will stump X as the Will was never executed and hence X will have a hard time naming the two witnesses, as he conjured up the whole story.
Get Your Share in Rents Till the Case is not Finished
Be that as it may the case will take some years for its disposal therefore you should file an application under Order XX Rule 18 of the Civil Procedure Code, 1908, so that X who is occupying the property hands over the rent of the property to you. So let’s say the Jangpura Flat’s rent is Rs. 100/- per month and you have a mother and 3 brothers and sisters then you can ask for Rs. 20/- (i.e. 1/5th) share in this rent because if the Flat is let out that much amount can be earned from the property.
Most of the times what happens is that X who is in the occupation of the Flat says that I have not leased the property and hence I am not able to give anything to anyone. In this case you should tell the Court that you are willing to pay Rs. 100/-, if the property is given to you. This will leave X, who is alleging a forged Will, with no other choice but to either to hand over the property to you or pay your share in the rent of the property to you every month.
Sometimes X will say that the rent from the Flat is not Rs. 100/- but only Rs. 25/- and you are exaggerating the rent in order to harass X. In this case you can file at least 4 Lease agreements of the adjacent Flats which are rented by their owners. In these Lease deeds the rent of the flat will be mentioned. This is especially a very effective method if the Flat is in a Society. As almost all the flats in the Society are same the rent of all of them will also be more or less same. In this case the X does not have much chance to deny the rent.
If you do not get any lease deeds of the above kind there is another way. If the rent is disputed by the other party you can get a Local Commissioner appointed by the Court who will visit the Flat, enquire the rent in the area and submit his report in the Court as to what is the rent of the property.
What if the Will is Signed by Your Father/Mother
It may happen that X during the last months of your Father’s/Mother’s life, taking advantage of their weak mental and physical health, made him/her sign or mark his/her thumb impression on the Will and takes over all the property.
In this case, your argument should be that due to the old age or persistent illness, X have taken advantage of your Father’s/Mother’s unsound or fragile mind. Any Will is liable to be set aside if the maker of the Will was unaware of the contents of the same. An old man during the last months or years of his life is in a sensitive state any son or daughter can take advantage of this.
Further you should try to prove that there is no reason that a son should be preferred over another as all the children were equally loved by the Father/Mother.
Conclusion
At one time it was considered that Partition of property is a simple process and all the siblings even without going to Court used to get their share. Even there are instances where the partition disputes were amicably settled in arbitration. But with time as the Courts became burdened with more and more cases, siblings having mala fide intention in order get hold of the property started prolonging the cases of partition, so that they can enjoy the property as long as they can. The case we discussed above is one of these kinds.
In these situations, when the party in occupation is trying to delay the case, one should rather than concentrating on finishing the case, should try to get an interim solution. Like getting the rent or possession of the property during the subsistence of the case. This way the brother/sister claiming property through the forged Will, will try to get the case completed as otherwise he have to pay money to all brothers and sisters, every month till the case is finished.
Parveen Semwal
Advocate, High Court of Delhi and Supreme Court of India