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Madhusudhan T R (Support Center Analyst)     18 July 2015

Property issue

Hello,

I would need some clarification on the partition of the property. As a known issue in each and every family, even we are having issues when it comes to the partitioning of the property.

The property was in the name of my father and my mother. Now the property has been transferred to my dad's name alone after my mothers death. Today there is a situation that my father is not ready to write even a "WILL" as he needs the complete property should be given to my brother. I have tried to convence him but have failed to do so. I know after my father's demise I have a legal hold on the property since it has been in a joint name of my mother & my father.

Is there any way that I can go legally now stating that if he is not executing the will, I also hold equal rights on the property either by sending a notice or something like that?

Please suggest, because of this I have been mentally torchured facing lot of health issues.



Learning

 18 Replies

saravanan s (legal advisor)     18 July 2015

how did you transfer your mothers share to your father.was it through a relinguishment deed made by you and your brother in favour of your father.

in that case you dont have any claim as you have already relinguished your rights over the mothers share

are you insisting him to write a will in your favour? in case if he refuses and die intestate you and your brother will get equal share

1 Like

ADVOCATE DIMPLE JINDAL (Advocate)     18 July 2015

Mr. Sarvanan has described right that after the death of your father, you and your brother will automatically step in the shoes of your father and you and your brother will got equal share in the property. Before death, you can not compel him to give all property transferred in your name. It's completely your father's wish. If they are not making any will then there is no issue for mental harrashment for you. But if they want to make a will in the favour of your brother, then it will create a problem for you and with out any question, they can do so.     

secondly it is also a issue, how the share of your mother have been transfered in your father's favour. If you have not  made any relinquishment deed, then it should be transferred in three proportions equally (your father, you and your brother), if you are two brothers alive only at the time of death of your mother. 

advocate nitin kumar (lawyer)     18 July 2015

mr. madhusudan it doesnot matter property is in name of father or the mother, property of both belongs to the legal heirs in any case.

 

as you told that your father is not willing to make a "will" neither he does not want to give you share in property then there are two ways to deal with this problem as per my intellect and experiance;

1. deal with it inside your house and enter into compromise with your brother and father about the issue. As good son you should not be concerned about the property you will get in the partition, you should be more concerned about taking care of your father and family.

if you have skills and talent you will earn your own money and property one day.

 

2. Second option is the law way, taking help of legal remedies and filing suit against your own family and take your share through court. I would not recemend that but in any scenario that is your legal right and you can move anytime to the court for the enforcement of your legal right.

 

now the main issue is that your father does not want to give share to you and in his position he can do so as he is the whole sole owner of the property right now, he can also exclude you in the "will" but then also he can not completely exclude your share in paternal property acc to Hindu succession act.

 

the only way he could make sure that you does not get any share in his property is that if he mentions in the transfer of property/registration as "sale" to his son. that means he has not transferred the property to his one son but he has sold it, in that case your right to sue your father/brother is completely gone.

 

So you need to make sure that your father doesnot sell(not in real sense but to exclude you) the property to your another brother, becasue if he does so your every right to get a share is lost.

 

And the second thing you need to make sure is, (it will be hard for you i guess)- forget the property serve your father and take care of him in last days of his life and do not be greedy for property because even if in the end you do not get the property in that case also you will have the satisfaction in your heart that you did your part of being a son and completed your duties towards your parents in full faith and care.

 

The work of a real advocate is not to take the parties directly into court and extract money from them, the real advocate is the one who could solve the problem of clients out of the court and show them a righteous path---- litigation must always be the last option.

 

hope that helped mr madhusudan and i am sure you will consider my advice.

KINDLY READ IT TWICE !

1 Like

dipak jadav   18 July 2015

I purchase agriculture land in my name. Mamlatdar rejected my land agriment. I have old agriculture purchase land in my name but no any land in my name which transfer to my family Father / Grand father,This reason my land agreement not accepted by Mamlatdar E Dhara Gujrat. My father name land but he is not transfer to my name.

ADVOCATE DIMPLE JINDAL (Advocate)     18 July 2015

 good thinking.....

ADVOCATE DIMPLE JINDAL (Advocate)     18 July 2015

I appreciate your advice "Nitin Ji"

1 Like

advocate nitin kumar (lawyer)     18 July 2015

thank you mr jindal 

that is the way i work 

 

saravanan s (legal advisor)     18 July 2015

i too appreciate mr nitins advice

1 Like

T. Kalaiselvan, Advocate (Advocate)     21 July 2015

I would like to respectully differ with learned advocate Mr. Nitin's one point here which is reproduced:

"he can also exclude you in the "will" but then also he can not completely exclude your share in paternal property acc to Hindu succession act."

The queriest has very clearly mentioned that the propertywas in joint names of his parents, therefore there is no question of paternal property and even otherwise there is no such thing called a right in the parternal property to the wards until it is ancestral property. 

The property being  legally transferred on the father's name after the demise of mother, the father becomes the absolute owner of the property, hence the father can disposethe property in any manner as per his will and wish.However if the father dies intestate then the property will devolve equally upn all his legal heirs.  You can have rightfully and legally claim a share that time. 

Chandra   21 July 2015

Hi Team,

This is Chandra from Bangalore. I am from Visakhapatnam, Andhra Pradesh.

I have 2 Uncles(Father's Brothers). As per Grandfathers Property(After his Death), Each of my Uncles had taken 2 shares of the Property and had given only one share to my Father long back. But nothing was written on any Documents by my Uncles and Father or by my Grandfather.

Now we have one small Empty space(Land)(Which is less than my Uncles 2nd share).

I am going to ask them to give it to me as a part of 2nd share as both of them got more than us.

But sure, they will refuse to give me that small piece of Land.

My Question: As nothing was written on the Documents about the shares of the Property.

1. As Per the Law, Will I get that Piece of Land If I approach the Court ?

2. As Per the Law, if they dont give me that piece of Land, Will the complete Property will be made to 3 Parts ? As each share to each one ?

 

Thanks

Chandra

 

 

 

 

ADVOCATE DIMPLE JINDAL (Advocate)     21 July 2015

Please reply to the following queries to clarify more your case.

 

1.. When your grandfather was expired?

2. On whose names, the property belongs to in the patwari records. Does any mutation was made with patwari after the death of your grandfather? Sometimes "patwari" make mutation on wrong facts or records, have you check the current status of patwari record for the same property? It will be main evidence of your co-ownership in that property. So go the concerned patwari or suvidha kendra (whatever facility is given in your area for giving copy of fard) and take a copy of "fard" for the same property, which shows on whose names the property stands.

 

Chandra   22 July 2015

Hi Sir\Madam

This is Chandra from Bangalore. I am from Visakhapatnam, Andhra Pradesh. I have 2 Uncles(Father's Brothers). As per Grandfathers Property(After his Death), Each of my Uncles had taken 2 shares of the Property and had given only one share to my Father long back. But nothing was written on any Documents by my Uncles and Father or by my Grandfather. Now we have one small Empty space(Land)(Which is less than my Uncles 2nd share). I am going to ask them to give it to me as a part of 2nd share as both of them got more than us. But sure, they will refuse to give me that small piece of Land.

My Question: As nothing was written on the Documents about the shares of the Property.

1. As Per the Law, if they dont give me that piece of Land, and If i approach the court, Will the complete Property will be made to 3 Parts ? As each share to each one ?

2. As Per the Law, Will I get that Piece of Land If I approach the Court as both of my uncles got two shares each  ?

Thanks Chandra

ADVOCATE DIMPLE JINDAL (Advocate)     22 July 2015

If the property still stands on your grandfather name, then firstly get it transferred on the names of all legal heirs (your father, and your uncles). For this transfer you have to get death certificate of your grandfather, succession certificate in the favour of your father and your uncles. Go to the concerned "Patwari" and make the necessary "Mutation". It will effect the legal ownership from your Grandfather's hand in to your father and uncles hand. After this change of ownership, talk to your uncles for accurate division of the property. If they did not agree or make lame excuses, then file a suit of possession in civil court. The only basis of your suit will be ownership proof in the land records, which you have to get changed as per above advise.

 

The Property should be divided in 3 equal parts untill and unless their are any special circumstances (registered will etc).

Chandra   22 July 2015

Thanks Sir


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