Online Copyright Registration in India

Protect your creative work
Books, Songs, film, websites, Software, painting, fashion Design etc
Call now: 09891244487

Ask Our legal Experts, on issues related to Divorce

File Mutual Consent divorce right away

Call at ph no: 9650499965
Search On:Laws in IndiaLawyers Search

To Appeal before CIC - Central Information Commission
For Filing and Hearing contact: Choudhury's law Office
Ph no: 9873628941

Author Topic: Mother & Brother do not allow me in father's property  (Read 672 times)

0 Members and 1 Guest are viewing this topic.

Offline lomna10

  • Newlaw
  • *
  • Posts: 6
  • Karma: +0/-0
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Mother & Brother do not allow me in father's property
« on: April 28, 2016, 01:09:56 AM »
To outline:

I am the elder of two sons, but have been living mostly abroad since late 70's.
I moved back to India with my wife and younger son in early 2012, and intended to stay in this home, however my brother (and his wife & two sons) & my mother did not like this idea, and have been very negative towards my family since long.
I do not have any properties due to circumstances abroad.
I have therefore been staying with my wife in her mother's home trying to start a business.
This is has been very stressful & difficult staying in in-laws house for me.
My father informed me (and all our extended family) that he made a registered will in 2008, which we all had seen as well.
He passsed in 2013, and since then we were unable to trace the will as the office it was registered in said that it had been destroyed due to flooding.
Anyhow, the property was then mutated by tehsildaar in to 3 shares - mine, my mothers, & my brothers, and in mc.
My brother already had transferred to his name majority of my father's business, and the shop.
All I want is too now get possession/partition of my third share in this home, so I can sell it any build a home for my family in the city I currently reside.
My brother is not agreeing, and is causing many hurdles by application of stay/injunction etc.
I do not know what to do.

Offline advkhanna

  • Jr. Legal Expert
  • **
  • Posts: 34
  • Karma: +1/-1
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #1 on: April 28, 2016, 01:44:43 AM »
did you file for partition of property.

as from your mail t is clear that you , your brother and mother have mutated the property in all three of your names am i correct

Offline lomna10

  • Newlaw
  • *
  • Posts: 6
  • Karma: +0/-0
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #2 on: April 28, 2016, 01:49:48 AM »
I have not yet filed anything.

When will went missing, I seeked advice from DC office, they issued statement saying the will has been misplaced due to flooding or whatever their reasoning were. The DC then ordered tehsildar to mutate into our 3 names.

My brother & mother are aware of this, but they constantly threaten that I have no right in the property.
I do not have any place to go, and if my in-laws ask us to leave I will be homeless.

I am not asking for entire property, just my one third share, so I can sell it and build a small home where I am now.

Is this possible for me, or will there be many hurdles?

Offline advjaibansal

  • Veteran at Law
  • *****
  • Posts: 510
  • Karma: +14/-11
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #3 on: April 28, 2016, 04:25:59 AM »
Dear Sir,

For getting your share in the property, you have to file a suit for partition and injunction on the said property against your brother and mother. There is no other option under the circumstances.

Regards,
Jai Bansal
Advocate, New Delhi
Supreme Court of India
bansal.jai@gmail.com
9868566649
jai bansal
Advocate, New Delhi
Supreme Court of India
bansal.jai@gmail.com
mobile: 09868566649

Offline lomna10

  • Newlaw
  • *
  • Posts: 6
  • Karma: +0/-0
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #4 on: April 28, 2016, 04:39:46 AM »
Thanks for the reply.

I must also file for an injunction? But I would eventually like to sell my share.
My brother  believe has applied for injunction, so I do not know what to do.

Once I file a suit for partition, how long does it take to get a result, and how is the decision made. For example, as the house is made in 500 sq yd., will the court order that three equal divisions will be made?

Also, as I am only one third share holder of the house, can the court order that the entire property be sold, even if others are not willing? The home building as it is does not seem like it can be divided, unless the plot is divided, then remaining portion of house in brothers/mothers share will have to be rebuilt.
« Last Edit: April 28, 2016, 04:42:34 AM by lomna10 »

Offline advjaibansal

  • Veteran at Law
  • *****
  • Posts: 510
  • Karma: +14/-11
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #5 on: April 28, 2016, 04:42:23 AM »
Dear Sir,

You have to file injunction application in your partition suit to prevent any sale during the pendency of the case. If property is 500 sqyards then it may be divided in meets and bounds, i mean equal share to everyone if possible to divide. If not then property may be sole in auction and sale proceeds be shared equally.

Regards,
Jai Bansal
Advocate, New Delhi
Supreme Court of India
bansal.jai@gmail.com
9868566649
jai bansal
Advocate, New Delhi
Supreme Court of India
bansal.jai@gmail.com
mobile: 09868566649

Offline lomna10

  • Newlaw
  • *
  • Posts: 6
  • Karma: +0/-0
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #6 on: April 28, 2016, 04:47:01 AM »
Thanks Adv . Jai Bansal for your help again.

The fact I have only 1/3 share would not be an obstacle in the court ordering an auction of the dwelling?
I hope not, as I don't have any home , thus need my cashed share to build myself one.

Offline advjaibansal

  • Veteran at Law
  • *****
  • Posts: 510
  • Karma: +14/-11
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #7 on: April 28, 2016, 04:49:32 AM »
Dear Sir,

AS if now please file a suit for partition for getting your share in the property. Let the court decide after getting the partition decree, whether to sell the property or divide in meets and bounds.

Regards,
Jai Bansal
Advocate, New Delhi
Supreme Court of India
bansal.jai@gmail.com
9868566649
jai bansal
Advocate, New Delhi
Supreme Court of India
bansal.jai@gmail.com
mobile: 09868566649

Offline adv.amarnath

  • Veteran at Law
  • *****
  • Posts: 1227
  • Karma: +52/-7
  • Advocate Amarnath Sanyal from Kolkata, West Bengal
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #8 on: May 01, 2016, 03:55:00 AM »
File a partition suit and injunction
Regards,

Amarnath Sanyal
Advocate
Email - adv.amarnath.sanyal@gmail.com
Mob - 09830303322

Offline lomna10

  • Newlaw
  • *
  • Posts: 6
  • Karma: +0/-0
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #9 on: May 02, 2016, 03:34:59 AM »
Thank you all for your suggestions.

In a twist of fate, the original Will (I believe it is original as it has my fathers signatures, the receipt of registration at the sub-registrar, photo of witness with father, etc.) has been found.

I was initially only go to claim for my 1/3 share, but now according to the will my share is a little more.

My brother in the meantime has I believe filed an application for injunction and suit implying that I have been harassing him for my portion - which is totally false.

Anyhow, I mentioned to him that the will has been found, and still gave him the option to settle, however he is now accusing that the will is fake and playing tactics all I think to gain time.

Please advise how to go about this, as he is complicating matters which are pretty straightforward.

Offline advjaibansal

  • Veteran at Law
  • *****
  • Posts: 510
  • Karma: +14/-11
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #10 on: May 04, 2016, 04:53:18 AM »
Dear Sir,

Please file a probate petition on the basis of WILL in the concerned district court.

Regards,
jai bansal
Advocate, New Delhi
Supreme Court of India
bansal.jai@gmail.com
mobile: 09868566649

Offline lomna10

  • Newlaw
  • *
  • Posts: 6
  • Karma: +0/-0
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #11 on: May 04, 2016, 11:13:14 PM »
Thanks for the reply Adv. Jai Bansal.

I have received the suit that my brother filed, it is in fact a declaration from him that the entire property has through a will (we are totally sure it is fake, it's unregistered etc.) been bequeathed to him, with false accusations toward me - ie. I was disobedient/disrespectful to my father, hence he chose to leave the property to my brother, and apparently my father has already given me all his movable assets. I used to visit them from abroad barely 3 days a year, so these are baseless accusations.

Anyhow, the will I have is an original document (registered etc), and it mentions the property is to be divided equally amongst my two sons, my brothers two sons, and a small share to two charities (ie. 20% to each of my father's four grandsons, and 10% each to two charities).
Further all moveable assets - unaccounted cash, share in his business, jewellery, and a specified locker is solely left to me.

I have engaged a lawyer, and he has suggested multiple routes which I am not too clear about. So I need some suggestions here.

1. In defense to the suit filed by my brother, we will submit the Original WILL in my possession, and then it is up to the judge to decide which is real?
2. Whilst this is ongoing, can a probate be petitioned (in court of Punjab)? Will this be another case filed by my lawyer (he is charging per case, so will this be another lump sum to him)?
3.  If the will is probated, will we still have to file a suit for partition/possession to be able to sell our share/get cash?
4. Will my sons need to file a separate suit of declaration that the property is theirs, and make other members party to this? (Lawyer suggests this in addition to defense of ongoing suit)
5. Said locker that I become the sole owner to was in fact operated the next day after my fathers death by mother/brother, and I have not received any jewellery/cash left by him - so is this a fraud case against them (I was still abroad during this time)?


What we would like is simply for our share to be cashed as we are returning NRIs and need to build our own home, so can a petition be filed for expedition as we are homeless NRIs?


Thanks again
« Last Edit: May 04, 2016, 11:18:37 PM by lomna10 »

Offline advjaibansal

  • Veteran at Law
  • *****
  • Posts: 510
  • Karma: +14/-11
  • Welcome to legal Service India - law forum for free legal Information
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #12 on: May 05, 2016, 04:27:52 AM »
Dear Sir,

Rather than submitting this WILL in the suit filed by the brother its more advisable to file a separate probate petition for the WILL which is with you. You just have to file a probate petition and no other cases by other family members.

Regards,
jai bansal
Advocate, New Delhi
Supreme Court of India
bansal.jai@gmail.com
mobile: 09868566649

Offline adv.amarnath

  • Veteran at Law
  • *****
  • Posts: 1227
  • Karma: +52/-7
  • Advocate Amarnath Sanyal from Kolkata, West Bengal
    • View Profile
Re: Mother & Brother do not allow me in father's property
« Reply #13 on: May 08, 2016, 03:06:48 AM »
1. In defense to the suit filed by my brother, we will submit the Original WILL in my possession, and then it is up to the judge to decide which is real?
Ans: You are taking wrong step. You must file a Probate Case and file a certify copy of proposed probate case

2. Whilst this is ongoing, can a probate be petitioned (in court of Punjab)? Will this be another case filed by my lawyer (he is charging per case, so will this be another lump sum to him)?
It is totally between you and your lawyer. But it is true that we, lawyer, charge separate professional fee for separate cases. But some concession we give on humanitarian ground

3.  If the will is probated, will we still have to file a suit for partition/possession to be able to sell our share/get cash?
Ans: Once probate is granted, automatically partition suit will be dismissed. You can also get stay order from district court in respect of partition suit.

4. Will my sons need to file a separate suit of declaration that the property is theirs, and make other members party to this? (Lawyer suggests this in addition to defense of ongoing suit)
Ans: No

5. Said locker that I become the sole owner to was in fact operated the next day after my fathers death by mother/brother, and I have not received any jewellery/cash left by him - so is this a fraud case against them (I was still abroad during this time)?
Ans: You can lodge a complaint case against him

What we would like is simply for our share to be cashed as we are returning NRIs and need to build our own home, so can a petition be filed for expedition as we are homeless NRIs?
Ans: This query cannot be answered under free online consultation.

For further consultation in details, you can contact me.

Regards,

Amarnath Sanyal
Advocate
Email - adv.amarnath.sanyal@gmail.com
Mob - 09830303322

 

File a Consumer Complaint
Property verification
Call: 9873628941
 

Lawyers in India - Listed city wise Mumbai
Bangalore
Pune
Pondicherry
Jaipur
lawyers in London
lawyers in Birmingham
Chennai
Allahabad
Ahmedabad
Jodhpur
Indore
lawyers in Toronto
lawyers in Sydney

Cochin
Lucknow
Ranchi
Thane
Janjgir
lawyers in Milan
Johannesburg

Delhi - New Delhi
Chandigarh
Surat
Nashik
lawyers in New York
los Angeles
Kolkata
Hyderabad
Rajkot
Nagpur
lawyers in Dhaka
lawyers in Dubai

Copyright Registration

Ph no: 9891244487

For Mutual consent Divorce in Delhi - Ph no: 9650499965

Home | Bare Acts | Law Forms | Supreme Court Judgments | Legal Advice | Lawyers | Submit article | Sitemap | Contact Us

legal Service India.com is Copyrighted under the Registrar of Copyright Act ( Govt of India) 2000-2016
Get Free legal Advice here from top notch lawyers in India