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Bhaktavatsala S (Professional)     08 August 2009

Can we sue if REGISTERED WILL is not followed

 

I do wish to say that, our father Late Shri M Shivaram (WAS AN ADVOCATE) had executed a registered Will, Bangalore. My father had bequeathed properties to all 3 sons, and detailed as Schedule ‘A, B and C’.
 
Schedule A property was ancestral, it was bequeathed to 6 shares(mother, 3 brothers and 2sisters), upon mother's request this property was released (RELEASE Deed) to our elder brother in April 2004.
 
Schedule 'B' is bequeathed to me.
 
Schedule 'C' property was an vacant land bequeathed to younger brother. Since we couldn't afford construction on this plot, it is clearly mentioned in the WILL that, out of the sale transactions in Schedule 'C' and subsequent purchase of any property is for our younger brother, or half of the portion of the schedule C property can be sold and can be utilised for construction in remaining Schedule 'C' property.
 
Para 6(e) as mentioned in the registered WILL, that “none of the property shall be transferred/registered in the individual names until the life of our mother”, keeping in mind my mother is illiterate.
 
But when nobody was available at home, my younger brother(advocate) has convinced my mother and got an AFFIDAVIT signed on change in name of KHATHA Consent and got the Schedule 'C' property transferred to his name in 2001, thereafter we had kept FD's(around 12Lacs) operated in Either or Survivor mode, younger brother(Advocate) has withdrawn amount during 2002 to 2004 and utilised this amount on construction on Schedule 'C' property. This amount was from my savings and father earnings.
 
One of the sister is staying at home due to some misunderstanding at their in laws house since marriage, and it is moral responsibility to take care of her. There is no immovable property bequeathed to my sister
 
In the Will this is mentioned, and also highlighted to share the movable properties amoung all children after our mother's life.
 
Since my younger brother has misused all amount kept in FD's and changed the property in his name, and presently getting rents of 80K from that Scheduele 'C' property and not taking care of sister welfare, started life threating for my life since 2004.
 
I have lodged Police complaint against him in April 2004 (no response), issued notice to BBMP on illegal change of khatha (no response), issued letters to Advocate Association/Bar council of Karnataka (no response)
 
My Questions:
1) Can I file law suit against a)Younger Brother, b)Mother, c)BBMP(Responsible for change in Khatha),d) Bank (to provide financial assistance)
2) Do I need to file recovery suit to recover the amounts utilised and revoke khatha's possession?
3) Do I need to file criminal case against younger brother?
4) Can my sisters claim property share in Schedule 'B' property (even though it is clearly mentioned, it is for me).
5)How to settle elder sister (staying at home) after my mother's life?
 
Sorry for very detailed lengthy query, Kindly excuse, please inform how best to deal this case and thanking you in the meanwhile.
-Bhaktavatsala S


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 10 Replies

R.R. KRISHNAA (Legal Manager)     08 August 2009

A will (after the death of the testator) if not probated is invalid and acts or transactions done in furtherance to which are all invalid.  First let us know whether you have probated the will.

krishna

Bhaktavatsala S (Professional)     08 August 2009

Testator has REGISTERED THE WILL at local Sub Registrar's Office.

R.R. KRISHNAA (Legal Manager)     08 August 2009

Any will (registered or unregistered) will take effect only after the order granted by the court that the will is genuine and valid.  This order of the court is called probate.  In my opinion city properties covered by will has to necessarily pass through the test of probate.  Without a order of probate the will is ineffective.  I hope you understand better.

Jithendra.H.J (Lawyer)     08 August 2009

Sir, Q.1) Can I file law suit against a)Younger Brother, b)Mother, c)BBMP(Responsible for change in Khatha),d) Bank (to provide financial assistance) Ans:Yes you can file suit for declarion that you are the owner of the property,but why you have not given the application to the BBMP to change the khata of B schedule to your name? Q.2) Do I need to file recovery suit to recover the amounts utilised and revoke khatha's possession? Ans:you can seek this relief in the same proceedings Q.3) Do I need to file criminal case against younger brother? Ans:if you are willing you can, you can give private complaint to the jurisdictional magistrate under section 200 of Cr.P.C O.4) Can my sisters claim property share in Schedule 'B' property (even though it is clearly mentioned, it is for me). Ans: You have stated that the property is ancestral,so your father was not ahving right to make will! if your sisters challenges the will, the whole will become void. 5)How to settle elder sister (staying at home) after my mother's life? Ans:it depends on your family members decission

Bhaktavatsala S (Professional)     10 August 2009

Thanks for clarification, I will try to get it probated.My father passed away 10 years back leaving the Registered Will, can I initiate probate now?,

Bhaktavatsala S (Professional)     10 August 2009

Sir, Sorry if I my earlier explanation is wrong. Let me put it clearly for Q1). In the REGISTERED WILL"It is mentioned that NONE OF THE IMMOVABLE PROPERTIES SHALL BE TRANSFERRED TO THE NAMES OF THE BENEFICIAIRES UNTIL THE LIFE OF MY MOTHER". So, that's the reason I have not applied for change in Khatha for scheduled 'B' property. Presently I am stayng in this property and paying yearly taxes regularly (the property still in my fathers name).Q4) Schedule 'B' property is self acquired property by my father and he has bequeathed the property to me. Can my sisters claim share in this property? Thanks for your kind reply and help.

 

 

 

Anil Agrawal (Retired)     30 August 2009

 After the death of the testator, for how long can the will remain unprobated?

adv. rajeev ( rajoo ) (practicing advocate)     22 September 2009

Yes on the basis of the will u can file a suit for declaration against ur brother.  u can also file an interrium application u/s 151 of cpc to deposit the amount whatever he has earned from schedule properties and amount withdrawn by the bank.

any immopvable properties worth more than Rs.100/- cannot be transferred to any body without the regd., doucment.  Whatever ur brother has done i.e., on the basis of the affidavit propety cannot be transferred, it amounts to stray entry which has no legal force.

Mere appearing the name in the khata does not create the tittle over the property.

So go for declaration suit.

prabhakar shetty (Advocate-9448840083)     03 October 2009

The last will of the testator is the will that holds, whether it is registered or not. How you proove it is another matter.

R.Ranganathan (Advocate)     10 September 2010

To probate the Will, first you have to explain the delay. Within 3 years from the date of death of the deceased will has to be probated. Further you have to explain whether you had acted upon the will all these years. Keeping in mind all these, approach an advocate and get the will probated and ask for the recovery of the amounts utilised by your younger brother and also cancellation of the Khata.


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