CAN AN ISSUE BE RAISED OUTSIDE THE CONTENTS AND SPIRIT OF A WILL
Querist :
Anonymous
(Querist) 12 September 2010
This query is : Resolved
dear sir,
the will of my mother which has been probated by the delhi high court clearly states that a certain house property no 1 in which she was living at lucknow shall pass on to me.
by the same will she passed on the second floor of another property at delhi, property no 2 to me.
my brother has encroached on my property no 2 at delhi.
He has apart from taking share willed to him,first floor of property no 2,also encroached on second floor of property no 2 at delhi which belongs to me.
he states that after death of mother, lies of course, that there was an oral family settlment whereby he was given my share second floor in property no 2 for relinquishing his right in property no 1 at lucknow.
as stated earlier the property no 1 at lucknow is also willed to me under the will.
my query is :-
since both properties, house at lko, proeprty no 1 and second floor of house at delhi property no 2 are willed to me where does the question of my brother arise in property no 1.
query
HOW DO I ENSURE THAT THE HIGH COURT AT DELHI WHERE I HAVE FILED FOR POSSESSION DISMISSES THIS CONTENTION OUTRIGHT AS THE WILL CLEARLY STATES THAT I AM THE BEHEFICIARY SOLE OF PROPERTY NO 1 AT LUCKNOW AND DOES NOT ALLOW THIS ONLY ISSUE OF MY BROTHER TO BE A PART OF THE ISSUES FRAMED.?
WHY AT ALL SHOULD THIS BE AN ISSUE WHEN THE WILL IS CLEAR ON ALL COUNTS.
THE WILL IS SACRED.
CAN IT BE SUBJECT TO INTERPREATION WHEN IT IS CRYSTAL CLEAR FROM THE WILL THE INTENTIONS OF THE TESTATOR?\
REGARDS VINAY KALA SEP 12,10
R.Ranganathan
(Expert) 12 September 2010
You have not stated whether this suit is for probate of the WILL or suit only for possession. First you go for probate then everything will be alright. Court at the time of probate only will give you all the rights and then you can get possession.
s.subramanian
(Expert) 12 September 2010
It is god that it is already a probated will. You can be sure that you will succeed in the suit since your brother has also been given some properties under the same will. Hence there is no chance for him to question the truth and validity of the will. That is why he is setting up the plea of some imaginaty oral partition falsely.Don't worry about it. Take care to disprove his claim of any oral partition subsequent to your mother's demise.
Wish you good luck.
Querist :
Anonymous
(Querist) 12 September 2010
dear mr ranganathan,
i have already stated in line 1 that the will is probated.
MY QUERY TO BOTH OF YOU GENTLEMEN , MR RANGANATHAN AND MR SUBRAMANIUM IS AS FOLLOWS:-
1. SINCE AS PER PROBATED WILL BOTH THE PROPERTIES, ONE AT LUCKNOW AND THE SECOND ONE AT DELHI ARE WILLED TO ME SOLELY HOW TO ENSURE THAT THE COURT DOES NOT FRAME THE ISSUE OF ORAL SETTLEMENT?
2. CAN IT NOT BE ARGUED THAT IN THE FIRST PLACE BOTH THE PROPERTIES ARE WILLED TO ME AND SO WHERE DOES THE QUESTION OF AN ORAL SETTLEMENT ARISE?
3. FOR ARGUEMENTS SAKE EVEN IF THERE IS AN ORAL SETTLEMENT IT CANNOT OVERIDE THE CONTENTS OF THE WILL WHEREBY THE PROPERTIES ARE NOT SUBJECT TO ORAL SETTLEMENT.
AT PRESENT THE PROPERTY AT DELHI IS UNDER ILLEGGAL POSESSSION OF THE BROTHER AND I HAVE FILED A SUIT FOR POSESSION, MANDATORY INJUNCTION AGAINST HIM AND MESNE PROFITS FOR HE IS RUNNING A GUEST HOUSE ON MY PROPERTY AND APPOINTMENT OF A RECEIVER.
THE QUERY REMAINS
WHY SHOULD THE COURT GO INTO THE ISSUE OF ORAL SETTLMENT WHEN THE WILL IS CLEAR.
WHY SHOULD IT NOT REJECT THE CONTENTION AB INITIO.
THE CASE IS BEING FILED TOMORROW AND HENCE THE EXPERT ADVICE SOUGHT
VK SEP 12,10
Surrender K Singal
(Expert) 13 September 2010
Probate has established the genuinity of Will;
Any claimed settlement has nothing to do with the Probate which was for a Will by the deceased who would not be a party to any such so-called settlement;
No fear should be entertained and your Suit for possession of your inherited property should succeed inrespective of any issue being framed for unsubstantiated that too oral which may not be provable in any case;
All the best for the Right one !
Chanchal Nag Chowdhury
(Expert) 13 September 2010
Remember the rule:- The intention of the testator is supreme, absolute & binding.
So, it automatically follows that no amount of story-telling by your brother will do especially when U R denying any oral family settlement.
Querist :
Anonymous
(Querist) 13 September 2010
DEAR SIR,
THANKS
VK
