Mumbai: A city civil court in Mumbai has ruled that a child has no legal right to claim a share in property that was allotted to her / his father by the grandfather while the father is still alive. The
court dismissed a suit filed by a daughter on these grounds. The court was hearing a suit filed on September 22, 2016, by Ingrid D’Souza, a resident of Andheri, against M/s Lords Group (the builder), her father Simon D’Souza, and her sister Margaret D’Souza.
The suit sought her share in a flat located in Danray building and an open plot in Borivali. She claimed that her grandfather, Daniel D’Souza, purchased the plot in 1963, constructed the building ‘Danray’, and allotted a flat to her father Simon. The flat was then occupied by Simon and his family, including both daughters. Daniel died on April 16, 2005, leaving behind six legal heirs. She further contended that her father and the other legal heirs of Daniel recorded their names in the revenue records without her consent and also got their names mutated in the city survey records for the suit property.
Additionally, she claimed that on August 22, 2013, her father sold the building, including the allotted flat, to Lords Group without the consent of all legal heirs. She argued that the suit property was inherited by her from her grandfather and that the conveyance deed was therefore illegal. The suit was contested by the builder, Lords Group, but the father and sister did not appear before the court. Regarding the flat, the court observed, “The plaintiff has no locus standi as long as the father is alive. The right of the plaintiff may accrue if he died intestate (not having made a will). Being absolute property of the father, which was allotted to him by his father, the plaintiff cannot claim any right, share in the property…”
As for the open plot, the court held that the suit could not be decided in the absence of the other legal heirs. It noted, “There are no pleadings, there is no evidence to show that, after constructing the building on plot, how much open area was left out. Therefore, it is to be presumed that the entire plot of the building, namely Danray, was constructed by the grandfather of the plaintiff.”
“Therefore if the partition of 1/8th share in the CTS No.85/1, 2 and 3 is to be effected, then the entire building will have to be demolished. I find that this cannot be done in absence of other legal heirs of Daniel D’Souza on record. I find that the partition decree cannot be passed and executed,” the court said.
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