1 Answer
Dear Client,
On your question about whether partition can be done while the OS is pending in court, the general legal position is that partition of the entire property is not advisable while a court case is pending over part of it, particularly where the court has issued a Status quo order specifically for Share A's area. A Status quo order means no changes in the position of that particular property are permitted until the court decides otherwise. Proceeding with a partition deed that includes Share A's area while this order is in force would be in contempt of court. However, the Status Quo order is specifically for Share A's area which means the remaining shares, particularly your grandfather's Share B and the shares of C and D, are not directly covered by that order unless the court's language is broader.
On your query about what to do when no one is willing to come forward for partition, the remedy is a Partition Suit filed before the Civil Court. You are not required to obtain consent or cooperation from your co owners prior to commencing a partition suit. According to CPC, a co owner may independently commence an action for partition, for which the court will determine the distribution of shares to each party, regardless of whether they are cooperative. File your action for partition in the name of all of the co owners. The defendants will include C and D and any representatives of A's interest. The court will eventually determine the matter and will issue its order of partition regardless of whether there was any cooperative agreement.
I will address Your question regarding whether Share B can be registered independently. In the absence of any formal partition agreement between ABCD and
the fact that there has been joint ownership of the property without demarcation for at least 46 years, no definitive determination or separation of the individual shares has occurred. Thus, attempting to register Share B without a judicial order, or without a properly executed and registered partition deed, will create difficulties legally, and may result in the registration of a new conflict of title.
The proper course of action would be to seek a judicial order in the currently pending partition action that would identify and allot Share B the legal heirs of your grandfather. At that time, the actual registration of the property and the making of a record title which is also called mutation will be fairly straightforward processes. Section 52 of the Transfer of Property Act, 1882 and the doctrine of lis pendens govern the sale of share A by Y party to Y party during the pending OS, which states that any transfer of property during the pendency of litigation shall be subject to the determination of that litigation. As Y party purchased share A with knowledge that the OS was pending, Y party will be subject to whatever determination the court makes in regard to the OS. This does not affect your claim to Share B.
I hope this helps, and if you have any further issues, do not hesitate to contact us.