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Nishant (abc)     20 May 2016

Partition of house based on will by father

Hello,

My father made a WILL of  the property (self acquired property) before his death. It is mentioned in the WILL that till my mother is alive, she has all rights to own and transfer the property and after her death, property will be divided into ratio of 60/40 between elder (myself) and younger brother  I have one sister also, she is not interested in any share.

Myself with my mother, my wife & two kids are staying in ground floor of the property, and my younger brother used to occupy first floor of the property. 

For Last 6-7 months, my younger started to live in other city, having locked his first floor portion. and he is not ready for any amicable settlement. 

 

Now we want to divide the property, since it is a plotted house, we want o divide the total plot in two parts, one with 60% area, where myself, my mother, my wife and two kids will stay, and 40% we want to set aside for younger brother to occupy, but since he is not vacating his first floor portion, it does not seem to be possible 

Respected members, please advise

 

1. Does my mother need to have this property registered in her name first before going for any parittion or gift.

2. or she can transfer 60% shares to me by way of gift

3. or she can force partition of property and raises a wall, breaking the structure on top where required.

 

Thanks very much in advance



Learning

 6 Replies

Kumar Doab (FIN)     20 May 2016

The mother may present the certified copy of the WILL to the authority under whose jurisdiction property falls alongwith fee and forms as per authority rules.

 

The rules may include newspapaer publication and thereafter if there is no contest to the WILL the property may be transferred.

 

Once she has become owner  on records she can press her decision.

 

 

Nishant (abc)     20 May 2016

Thanks Kumar ji for your prompt reply,

You mean to say that, the property needs to be transferred and registered in the name of my mother first, then it could be partitioned.

or she can partition it, based on WILL only ?

Kumar Doab (FIN)     20 May 2016

You have posted many queries and it is felt that you are yourself a legal professional.

The owner or person that has attained rights equal to that of owner can decide.

If the WILL is valid it shall fetch your mother rights of an owner, after it is effected.

You may show the WILL verbatim to an able counsel for a considered opinion.

  

 

Nishant (abc)     20 May 2016

Thanks so much kumar ji once again,

Can any expert answer about the second issue, which is locking of first floor premises by younger brother and possiblity of having a partition, if he does not vacate the first floor flat.

 

 

Kumar Doab (FIN)     20 May 2016

 

After the HIndu Male has deceased: His ClassI legal heirs shall have equal share in his property/estate i.e. Mother, Wife, sons, daughters.........

Thus the younger brother has equal share.

No one can ask him to vacate.

Until or unless the WILL is presented and accepted as valid.

Ompal Aggarwal (Advocate)     20 May 2016

I think will made by ur deceased father is not registered. In ur case ur mother has to get the will validated ie probate the will from the court. After that ur mother would get that property transfer in her name.other steps can be taken only after that ie to comple ur brothrr to vacate the premises. But language of the will shows that ur deceased father has in his will gave ur mother life interest in the proprty. In such ur mother can enjoy the property but can't transfer or sale the property. After her death that property will be divited as per will between u and ur brother.so better settled amicably the matter

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