Registered will property

Dear Sir,

Your query is not very clear. The way I understood the details are as follows:

• The plot is ancestral and was inherited by your father (through partition deed)
• Your father added 100 sq. yards to it using your mother's money
• Your father gifted the plot to you (through a gift deed witnessed by your mother)
• You spent money (through a loan) on it to build a house
• Your brother has occupied the house after your mother's death and claims his right through a will of your mother
• Please clarify - is your brother claiming full plot or only half of it?

As far as legal position is concerned:

• Plot is ancestral - so your father can gift only his share to you i.e. one-third (one-third will be your brother's and one-third is yours)
• Therefore, despite gift deed your brother retains one-third share in the plot.
• 100 sq yards annexe was purchased using your mother's money and even if it was in your father's name, it can be argued that she is the actual owner.
• Her signature on gift deed in your favour is as witness and not executory - however, it can be argued that she consented to its gift to you.
• The money spent in construction of the house is yours and therefore your share is increased by this much amount.
• At the end, your brother retains one-third share in the original ancestral portion of the plot despite a gift deed from your father in your favour.
• Your mother has no share in the ancestral property of your father, and therefore cannot will the same.
• She can however will the 100 sq yards purchased through her money (if your brother can prove successfully that it was never gifted to you)

Overall, the legal position is complicated and you would be advised to visit a good lawyer well versed in Transfer of Property and Succession Law. Where are you located?

Dear Gupta Sir,

                            Thank you very much sir for your elaborated reply and logical evaluation. Sure you will become a leading lawyer and God bless you. Actually the plot belong to my father's share in our family arrangement signed by me ,my father and my brother. My brother claiming my mother's share in the plot.All remaining O.K. Now I think you have clear picture on the details.

                                                                                               Kindly advise me accordingly and how much share can I get from my mother's share.

Dear Sir,

If it is accepted as your mother's share, then technically she is absolute owner and can will it in anybody's favour. Therefore, if she has willed it to your brother, then your brother can claim full share of 100 sq yards.

However, there are some arguments in your favour:

1. Since the annexe was purchased in your father's name, it can be argued that your mother gifted the money to purchase the plot to your father, who subsequently gifted the plot to you. Therefore, the plot never belonged to your mother.
2. Another argument can be that your mother witnessed the gift deed for the entire plot in your favour. Therefore, she also acquiesced in the gift.
3. The annexe was apparently purchased in 1975, before the family agreement in 1982. Since, your brother has signed the family agreement, he was aware that the annexe was part of your father's plot, and therefore, gave up his right to the plot in the family agreement.
4. Finally, even if your brother did not give up his right. he has agreed in the family agreement that the plot belonged to your father. Now, on the principle of estoppel, he cannot be allowed to go back on his own words and claim that the annexe actually belonged to your mother.

Ideally a compromise will be the best solution and should be preferred. A court case can drag on for years and can go either way. The above arguments are strong and should help in bargaining with your brother. I will advise that you start bargaining for a ~80% share and agree at ~60% share.

Thanks,

Suneet