FAMILY DISPUTE ON WILL
jach000019
(Querist) 18 June 2011
This query is : Resolved
on the basis of the WILL of my late father i.e of the year 1998(which is not registered and not yet probated) and as per the WILL flat premises which was purchased by my father during his lifetime and was in his name, was given to me and my younger brother and shop premises was given to my elder brother which was purchased by my father during his lifetime in the HUF name as he was the KARTA (i have the copy of the agreement with me ) shop receipt also reprtesent his nme as KARTA under HUF but the share certificate of the shop was in the name of my father and my elder brother jointly, therefore on the basis of the WILL, we all the 7 legal heirs i.e 4 elder sisters(all are married before 1990) and we 3 younger brothers, mutually accepted the will and duly executed and notarized the joint affidavit (with notary's book no. on it) regarding AACEPTANCE OF THE WILL and jointly executed the affidavit/consent/NOC regarding the distribution of the assets among the legal heirs but when i had given the application to the society (in the year 1999) for transfering the flat premises in my and my younger brother's favour on the basis of the WILL alongwith the NOC of my other legal heirs. my elder brother took the objection to the society regarding not to transfer the flat premises in my and my brother's name stating WILL executed by my father and his given ACCEPTANCE OF THE WILL and NOC( jointly notarizd) for the flat premises is bogus therefore flat premises should not be transfered in his younger brother's name (i.e me and my younger brother) therefore my society stopped the procedure of transferring the flat in our favour similarly me and my younger brother also given the stop transfer letter to the concerned society for not to transfer the shop in his favour mentioning that as he has stopped the flat transfer in our favour therefore shop should be transfered only after getting our fresh consent but as the share certificate of the shop was in the joint names of my father and my brother name, the concerned society duly deleted the neme of my father from the shop's share certificate,and after the period of 7 years we i.e me and my younger brother filed a case against the society in the dy.registrar for getting the flat transfered in our names and dy.registrar after scrtinizing of all the documents i.e notarized consents of the heirs and persuing all the documents i,e WILL and ACCEPTANCE OF THE WILL OF THE LEGAL HEIRS, NOC of the others legal heirs for transfering the flat in our favour, dy registrar gave the decision in our favour and issued the order to the society that since WILL and ITS ACCEPTANCDE AND NOC of the legal heirs is not negatived by any court therefeore the flat should be transfered in our anme that is me and my younger brother's name threrefore society should transfer the flat.subsquently soc, also allotted us the membership of the society and also transfered the share certificate in our names. now my brother has filed the revesion application before the joint registrar and the matter is pending therefore i would like to know what the deceision joint registrar can give as the flat already has been transfered in our name, is in our possesion of me and my younger brother and we are paying the outgoing of it to the society similarly socieyt is also issuing the receeipt in our name,on the other hand shop is in the possesion of my elder brother and the share certificate also on his name as the name of my father has been deleted he has given the shop on rent and enjoying the rent amount similarly flat premises is in the possesion of me and my younger brother and we are paying the outgoing of it to the society similarly socieyt is also issuing the receeipt in our name.
(1) what the decesion joint registrar can
give in this regard when the flat
premises has been already transfererd.
(2) will there be any need of probating
of the WILL?
(2) after the gape of 10 years does my
brother can chellange The will.
and now in 2011 at joint registrar's proceeding we have come to know that annexures submitted by our elder brother in his revision application are the fabricated annexures which was never received by the society in real this was written by us in our reply to the joint registrar and same was also mentioned by the society in its reply to the joint registrar and soc. And when we had further enquired we have come to know that even the letter head of the advocate used by the elder brother for making the correspondence to the society for stop of the flat transfer is forged this we had come to know when we had met that advocate he had told us that his signature on the letterhead is forged and he had never issued such notice to the society and than that advocate filed the police complaint after taking the certified copies of correspondence from the society.
we two brothers demanded the written arguments but my elder brother have not submitted any rejoinder and nor he replied of our written argument finally joint registrar has revert back the matter again to dy. registrar for deciding the matter after making my elder brother as party after setting aside the order, passed earlier by the dy. registrar on which the flat was transferred.
Now the matter is going on again in the court of dy. registrar.
So please let me know that.
(1) Are we are the still the member of the society since SHARE CERTIFICATE is in our name and the society is issuing the maintainace receipt in our names.
(2) Here also the society has given the reply in our favor so what dy. registrar can decide, does the dy. Registrar has the power to cancel our names from the share certificate which was endorsed by the society on the order of the same dy. reg. earlier.
(3) Can we challenge the order of the joint registrar in the high court.
(4) Can we file the rit petition in the high court stating that, on the basis of the documents membership is rightly passed if my brother has any objection he can challenge the will.
(5) He has submitted the bogus documents as annexure and his correspondence to the soc. For raising objection for transfer of flat premises is also forged and bogus so can we two brothers file any suit against him?
(6) As he is denying from his notarized executed consent about the will and given noc for transferring the flat premises, so can we file any suit against him on the basis of denying the executed documents.
SECONDLY NOW MY BROTHER IS READY FOR THE SETTLEMENT AFTER TAKING THE HANDSOME AMOUNT I.E RS. 30 LACS FROM ME SO PLEASE SUGGEST ME THAT:
(1)IS IT THE WORTH FOR THE ABOVE MENTIONED MATTER TO GO FOR THE SETTLEMENT BECAUSE ALREADY MY MATTER IS ON THE MERIT SINCE HE HAS ALREADY TAKEN HIS SHARE OF THE WILL AND I AM ALSO HAVING THE JOINT NOTRAZIED CONSENT OF THE WILL AND NOTARIZED NOC FOR TRANSFER OF THE FLAT PREMISES OF ALL THE LEGAL HEIRS? AND NOT ONLY THIS WITNESSED OF THE WILL THAT IS MY UNCLES THEY HAVE GIVEN ME ALSO THE NATARIZED CONSENT ABOUT THE GENUINENESS OF THE SAID WILL.
FURTER UP TO SOME EXTANT I AM ALSO CONSIDERING THE SETTLEMENT, SO FOR ME TIME IS NOT THE ISSUE THAT HOW MUCH TIME IT TAKES FOR THE SETTLEMENT, I WANT THE PERMANENT SOLUTION.
(1)SECONDLY SINCE WE ALREADY HAVE THE WILL OF OUR LATE FATHER IF WE ARE DOING THE SETTLEMENT THAN WHAT TYPE OF THE DOCUMENT SHOULD BE PREPARED WHICH SHOULD ATTRACT LESS GOVT. LEVIES LIKE TAXES, DUTY ETC AND THOSE DOCUMENTS SHULD NOT BE CHALLENGABLE IN ANY COURT SO HE SHOULD NOT BE ABLE TO MOVE TO THE COURT AND DRAG THE MATTER FOR ANY REASON SOME ADVOCATE ARE SUGGESTING FAMILY AGREEMENT WHILE OTHERS ARE SUGGESTING GIFT DEED, ,PROBATE AND RELEASE DEED HERE PLEASE NOTE THAT EXCEPT MY THIS BROTHER I HAVE FOUR ANOTHER MARRIED SISTERS AND ONE YOUNGER BROTHER WHO IS LIVING WITH ME )
(2)IS IT TRUE THAT FAMILY SETTLEMENT AFTER REGISTRATION ALSO CAN BE CHALLENGED IN THE COURT.
(3) WHAT WILL BE THE PERCENTAGE OF STAMP DUTY IN THE FAMILY SETTLEMENT DEED, STAMP DUTY WILL BE ON THE VALUE OF THE ALL THE ASSETS OF THE WILL OR IT WILL BE ONLY ON THE SHARE OF THE ELDER BROTHER’S PART.
(4) AFTER EXECUTING THE FAMILY SETTLEMENT DEED CAN WE GO FOR THE PROBATE OF THE WILL IF YES WHILE APPLYING FOR THE PROBATE CAN MY ELDER BROTHER CAN TAKE THE OBJECTION THERE, EVEN WE HAVE EXECUTED THE FAMILY SETTLEMET DEED.
(5) AFTER COMPLETION OF THE NOTICE PERIOD CAN MY ELDER BROTHER OBJECT FOR THE PROBATE SECONDLY ONCE THE PROBATE IS ISSUED AGAINST THE WILL, IT WILL BE PERMANAT SOLUTION OR AGAIN THE PROBATE ALSO CAN BE CHELLENGED FOR ANY REASON OR SOME QUESTION CAN BE RAISED IN THE COURT BY MY ELDER BROTHER AGAINST THE PROBATE ISSUED.
(6) OTHER LEGAL HEIRS I.E MY SISTERS ARE LIVING OUT OF MUMBAI IN OTHER STATES OF INDIA SO CAN THE BENEFICIARY OF THE WILL OR ANY OTHER PERSON CAN SIGN ON THEIR CONSENTS FOR OBTANING THE PROBATE AFTER GETTING THEIR DULY REGD. POWER OF ATTORNEY.
(7) ALREADY THE MATTER OF OUR DISPUTE IS RUNNING IN THE JOINT REGISTRAR SO IF MY ELDER BROTHER SUBMIT THE CONSENT TERM THERE AND SIMILARLY HE WITHDRAW THE CASE ON THE BASIS OF SETTLEMENT SO WILL IT BE THE RIGHT WAY BECAUSE HERE ULTIMATELY COURT IS BECOMING WITNESS THAN WILL HE BE ABLE TO GO OR FILE ANY OTHER SUIT IN ANY OTHER COURT.
(7) WHAT IS RELEASE DEED, IS IT CHALLENGEABLE IN THE COURT CAN WE GO FOR THIS.
(8) IN MUMBAI, IS THERE ANY STAMP DUTY IN THE REALEASE DEED WE HAVE COME TO KNOW FROM THE NO. OF ADVOCATES THAT IF THE REALEASE DEED IS MADE WITHOUT ANY CONSIDERATION THAN THERE WILL BE ONLY RS.200/- CHGS. AND IF THE AMOUNT OF REALSING THE RIGHT IS MENTIONED THAN THERE IS 5% STAMPS DUTY ON THAT AMT. SO IS IT RIGHT?
(9) IS REALEASE DEED CHALLENGEABLE AFTER REGISTRATION AND AFTER REGISTRATION CAN ANY PERSON CAN SAY THIS IS BOGUS OR I AM CANCELLING IT.
(10)CAN ANY RESTRAING ORDER CAB BE DEMANDED FROM THE COURT AGAINST THE REGD. RELEASE DEED?
(11) SINCE ALREADY WILL IS THERE SO CAN MY SOCIETY CAN DEMAND THE PROBATE OF THE WILL MEANWHILE ON THE BASIS OF THE REALESE DEED OUR TITLE OF OWNERSHIP ON THE FLAT PREMISES WILL BE ESTBLISHED OR AGAIN PROBATE WILL BE REQUIRED SINCE WILL IS THERE.
(12) IF WE ARE EXECUTING THE REALEASE DEED AND FUTHER IS IT SUGGESTED TO GIVE HALF THE AMOUNT I.E 15 LAC TO MY ELDER BROTHER WHILE EXECUTING THE REALEASE DEED AND AFTER THAT WE WILL APPLY FOR THE PROBATE AND TILL THE TIME PROBATE IS COMING CAN WE DEPOSIT THE BAL. AMOUNT I.E 15 LAC IN THE ESCROW A/C SINCE MY ELDER BROTHER ALSO WANT THE SECURITY OF THE MONEY.
(13) SINCE WE HAVE STOPPED HIS SHOP PREMISES AS MENTIONED ABOVE CAN WE ALSO REALEASE HIS SHOP PREMISES IN HIS FAVOUR BUT THIS WE DO NOT WANT AT THIS STAGE SINCE WE HAVE DOUBT THAT IF WE WILL RELEASE THE SHOP PREMISES AND AFTER EXECTION OF THE RELEASE DEED WHEN WE WILL GO FOR THE PROBATE THRE HE CAN DISTURB US AND IS IT POSSIBLE TO MAKE THAE CONDITIONAL RELEASE DEED BUT EVEN IF THE CONDITION WILL BE BROKEN OUR 15 LAC MONEY WILL BE TAKEN AWAY BY HIM.
If any lawyer of Mumbai is interested to tackle this settlement process than we request you to kindly submit your email id in your reply.
THANKS IN ADVANCE PLEASE REPLY,
