Lawfully yours: By Retd Justice K Chandru

Only when mediation fails, you can file civil suit for partition

One of my brothers, a government servant, who is handling the rent from our common property, is not willing to divide the property among the legal successors. It is an inherited property and our parents are no more. I want my share of the common property owned by my father, so also my other brother and sister. How can we get the property partitioned? Is it possible to charge conspiracy to grab the property without any valid legal authorisation?

— Saravana Velu, Tambaram

There is no difficulty for you if the property is an inherited one. All brothers and sisters are entitled to an equal share. Since no one is residing in the ancestral property, you can file a partition suit jointly in the local sub-court and get your share in the house. The civil court will initially pass a preliminary decree awarding the right of each party their proportional share. Thereafter, in a final decree, the court may order the sale of the property and each decree holder will get the monetary value of their share.

Under the present law (civil procedure code), one has to go before a mediator first and try to solve the issue. Only when the mediation fails, you can file a civil suit for partition. Such cases are likely to be solved in a mediation conducted by a trained mediator.

For getting custody of child, nationalities are not relevant

I used to be an NRI, legally fighting since 2017 to get access to my kids, who are citizens of the US but were abducted to India by my spouse. Her lawyers created a syndicate and are making sure that I won’t get any legal help in Chennai courts. Please advise me on what can be done and how to go about it.

— Nagesh, Mamillapalli

There are many competent and ethical lawyers here in India. You can engage them and fight for your rights. For child’s custody, nationalities are not relevant. Such cases will be decided by courts on the basis of what is in the “best interest of the child”. There is no vested or legal right to get exclusive rights over the child either by the husband or the wife. Even if one party is given custody, the other party will be given visitation rights.