how i claim my share in the property

Querist : Anonymous (Querist) 17 November 2009 This query is : Resolved
we are 3 brother and 3 sister.

all are married

my two brother was residing with my parents and due to my service outside
i was residing other city.

my father acquired the property from my grand parents.

my father made a will (registered in 2004)
a photo copy is with me.

my mother died in july 2005.
he died on aug 20 2009.

my brother has occupied the total building
and some portion is with tenantes.they are
receiving the rent also.

property is worth 5 crore.

my father in his will has alloted the share to son only.

my both brothers has ben alloted the best part and i have been alloted only 25% worth and that portion also they are not handovering to me.

my brother son has taken a overdraft facility againstthe complete building including my share when my father was alive getting his signature.

question are

--how i can stop further overdraft facility to my brother son

---how i can claim my share

---will my sisters will have right in the property.

--if it has ro be equally distributed
how i will get it because my brother are
residing there

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Adv Archana Deshmukh (Expert) 17 November 2009
If it is an ancestral property then the WILL made by your father is not binding upon you. All the 3 brothers and 3 sisters have equal share in the property. You can claim your share by filing a partition suit.

Devajyoti Barman (Expert) 17 November 2009
If your father has bequeathed that property through a validly executed will or last testament then all the legatees including you will be binded by the directions of will(amount of share).

In the context of your father dying intestate, your sisters have absolutely got no interest in the property though they have the right to challenge the legality of the said will at the time when it is applied for probate, if in the meantime the probate is not granted. However, even if the probate is granted your sisters may apply for revocation of will in the same court from where it was granted under Indian Succession Act if they wish.

You can easily claim for your share inthe said property through court by filing a suit for partition and injunction where you can claim your share and restrain the other co-sharer from making it mortgaged further as well.

adv. rajeev ( rajoo ) (Expert) 17 November 2009
U can claim ur 1/6th share in the properties.
You father had no right to exeucte the will in favour of only in the name of son at most he could have made will of his share only. The will exeucuted by ur father is not binding on you. File a suit for partitin and seperate possesion of ur 1/6th share. You can file an IA u/o 39 r 1 & 2 restraining ur brother from obtaining the further overdraft facility. Ur sister will have the right equally.

dhiraj choudhary (Expert) 17 November 2009
no doubt will executed by ur father can not snatch ur right in proprty if the same is ancesatral property and not self acquired one n for that purpose u hav 2 file a suit to challenge d validity of d will by getting it declared as null n void from the civil court n then at d same time lay ur claim over property being cosharer as consequential relief

Sachin Bhatia (Expert) 17 November 2009
As you said it is an ancestral property so the WILL made by your father is not binding on that property. You can claim your 1/6th share by filing a partition suit.

Adinath@Avinash Patil (Expert) 17 November 2009
property is ancestral hence will is not binding you you can get 1/6 th share.you can file partition suit.

how i claim my share in the property

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