Regarding joint ownership after partition, will
Sita Vallabhav
(Querist) 19 August 2015
This query is : Resolved
Respected learned professionals,
I am common friend of the family. ( On Various discussions with the family members, a clear picture is emerged to me hence the query, respected professionals... )
Brothers Vishnu, Mahesh, Ram, & Ganesh got their father's property partitioned in 1959 by registered partitioned deed .K.erala.
In this partition, property of Mahesh and Ganesh is kept as joint property in the name of Mahesh and Ganesh together. (The reason stated to keep Mahesh's property also as join property along with that of Ganesh was that mahesh was diabetic and he was not interested to mariage. So elders thought it fit to keep his property together with that of Ganesh as Ganesh will take care of Mahesh. Also Mahesh was not in good terms with other two brothers Vishnu and Ram.)
Mahesh was unmarried and he died on 1969 at the age of around 50.
This joint property is enjoyed by Ganesh, his wife & children, ever since the death of Mahesh who died unmarried.
All other brothers : Vishnu, Ram and Ganesh were married and has wife and children.
Vishnu, Ram and Ganesh have died.
Now, in 2015, the family of Vishnu and Ram approaches Ganesh's family demanding partition of the share of Mahesh for them claiming they are co-owners of the property as class II heirs of Mahesh.
But Ganesh's family tells them that, Mahesh under the will dated 1967 bequeathed whole of his property in the joint holding to Ganesh only.
The will written in 1967 is non registered but witnessed by two persons. ( i was told that WILL need not be regestered & also need not be Probated in this state.)
How Ganesh's family prove the authenticity of the will as it is not registered and not probated ( They do not know whether the will needed to be probated long ago) and the witness have died now.
Now family of Vishnu and Ram have informed Ganesh's family that they will go to court and disprove the WILL.
The Will is made 47 years ago.
The two witnesses are not alive now.
Nobody has till now staked claim on share of Mahesh as class II heirs in the joint property in the names of Mahesh and Ganesh.
The said joint property is possessed and enjoyed solely by Ganesh and his wife and children.
When the matter goes to court and the Will is produced in the court, Whose burden it will be to prove or disprove the authenticity of the Will?
What are the chances, the court allowing Ganesh's wife and children continue to possess and enjoy the property as per the WILL?
How can Ganesh's family prefect the title in their name of this joint holding.
Will the court support Ganesh family on the basis of Survivorship
since the property was on joint name,the survivor will have right over pre-deceased partner)
Is limitation period in favor of Ganesh family?
please enlighten sirs..
rajagopal.s
(Expert) 19 August 2015
Hi
It appears that Vishnu and Ram do not have a case at all.
they should have pursued the case soon after the demise of Mahesh(1969).
The will cannot be challenged now(1967 year of making the will , 2 witnesses died etc,).
The limitation period is in favour of Ganesh's family.
Rajendra K Goyal
(Expert) 19 August 2015
When the matter goes to court and the Will is produced in the court, Whose burden it will be to prove or disprove the authenticity of the Will?
- Primarily Plaintiff need to prove the will as false.
What are the chances, the court allowing Ganesh's wife and children continue to possess and enjoy the property as per the WILL?
- The case, if filed has less chances to succeed.
How can Ganesh's family prefect the title in their name of this joint holding.
- On the basis of will they should have got it mutated in their name.
Will the court support Ganesh family on the basis of Survivorship since the property was on joint name,the survivor will have right over pre-deceased partner)
Is limitation period in favor of Ganesh family?
--Court does not support, it decides the matter on merits.
Sita Vallabhav
(Querist) 23 August 2015
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Sita Vallabhav
(Querist) 23 August 2015
Thanks Thanks Learned experts.
T. Kalaiselvan, Advocate
(Expert) 23 August 2015
I agree with the opinion of expert Mr. Rajagopal that either Vishnu and Ram or their legal heirs have no case at all against the legal heirs or the successors of Ganesh.
Not only the Will need not be probated at this time after a period of almost 47 years of it being enforced, the law of adverse possession and all the balance of conveniences are in favor of the successors of Ganesh, so basically the partition suit, if any, filed by the heirs of Vishnu or Ram may not be tenable in law or may not sustain.
actually there are no class II legal heirs alive now hence the heirs of successors of Ganesh, who was the beneficiary by the virtue of the Will, shall be legal owners and in the passage of time due to their possession which was adverse to the new claimants, they have chances to win the case.
Your undermentioned concept has no legal value:
"When joint owners are there,and one is pre-deceased,survivor becomes full owner.When properties are partitioned,each holder become absolute owner of his share and so when two brothers have become joint owners absolutely,then survivor becomes full owner.Share of deceased does not remain ancestral."
Can Ganesh's family rely on the above mentioned point also for their absolute claim of share of deceased joint holder Sri. Mahesh?""
This will not be tenable in law and you should not take a defence in this line. The partition and joint possession of Ganesh and Mahesh cannot be considered as either or survivor basis, joint possession means both have equal rights and upon their intestate death the property will devolve on their respective legal heirs alone and not on the basis of your concept.
You have chance of taking defence on two aspects, one is upon the operation of Will deed, next is by operating the law of adverse possession clause or even both.
Sita Vallabhav
(Querist) 24 August 2015
Respected Rajagopal.S sir,
Thanks very much for the reply. For more clarity, please clear the doubts:
1. Is Vishnu's and Ram's claim as class II heirs, barred by law of limitation ?
2. What was the reasonable time, as per law, for them to claim for their share as class II heirs of Mahesh ?
Thanks sir
Sita Vallabhav
(Querist) 24 August 2015
Respected Rajendra K Goyal Sir,
Thanks for the valuable reply sir,
Please clarify the doubts:
1."The case, if filed has less chances to succeed."... For whom the less chances, for Vishnu & Ram or Ganesh ?
2. Will the court favor Ganesh family on the merits of law of Limitation?
and thirdly....
3."When joint owners are there,and one is pre-deceased,survivor becomes full owner.When properties are partitioned,each holder become absolute owner of his share and so when two brothers have become joint owners absolutely,then survivor becomes full owner.Share of deceased does not remain ancestral."
Can Ganesh's family rely on the above mentioned point also for their absolute claim of share of deceased joint holder Sri. Mahesh?
Thanks sir,
Sita Vallabhav
(Querist) 30 August 2015
Respected Rajagopal.S sir,
Thanks very much for the reply. For more clarity, please clear the doubts:
1. Is Vishnu's and Ram's claim as class II heirs, barred by law of limitation ?
2. What was the reasonable time, as per law, for them to claim for their share as class II heirs of Mahesh ?
Thanks sir
