Daughter share in her father's property
Nisha
(Querist) 09 April 2010
This query is : Resolved
Hi
Need your Advice.
My mother's father has died recently leaving his one flat and his shop as only property and made no will, now her two brother are not ready to give any share in the propery of her father. They are leaving as joint family in that flat and both the brother are married and having kids. Now they are telling that we are not going to sell this flat but they are making partition in that flat so that both their family can live comfortably. One of her younger brother is also claiming that their father has giving him the power of attorny of their shop for taking all the decission regarding shop which we think is not the correct one bcoz no family member has any knowledge of power of attorney givn to him.
1) Can we still claim for her share and how?
2) Can we ask the court to vacant and take the possession of that flat with court and seal it till the case is pending?
3) Can she cliam the share in shop too?
B K Raghavendra Rao
(Expert) 09 April 2010
1. Your mother has equal share in the property left behind by her father. She has to claim her share by issuing a legal notice for partition. If not agreed, she has to file a partition suit in a jurisdictional civil court.
2. No courts would normally do not pass such orders. Ultimately, it is the property that has to be divided among the successors and hence vacating the building and having the premises in the court's custody is not a relief.
3. Your mother can claim her share in the shop too. Property means - both movable properties and immovable properties. Immovable properties include, land, residential building, commercial building and any other type of immovable property.
If the property could not be divided into three shares - one for your mother and one share each for her two brothers - then the property would be auctioned and the money would be shared. While selling so, the brothers or your mother may opt to purchase the same and they would be given preference.
Guest
(Expert) 09 April 2010
Further to the right advise of Mr. Rao, She can even claim 'mesne profits' ie., profit from the shop as well as share based on 'Fair Rent' on the Flat in which her brothers are staying.
Nisha
(Querist) 09 April 2010
I really apprciate your endeavor in the cited matter.
Also pls advise what we can do for the claim made by younger brother of power of attorny givin to him can we challenge that power of attorney.
and according to you should i hire a legal advisor who can file partition suit on behalf of my mother.
I would also like to know what should be our next step how to approach and whome to approch.
adv. rajeev ( rajoo )
(Expert) 09 April 2010
Your mother will have to file suit for general partition and seperation possession of her share she can also claim meanse profit
bhupender sharma
(Expert) 09 April 2010
power of Attorney is ceased to exist otherwise the power of attorney is legally valid till your grand maternal father is alive more so your mohter has every right as your maternal uncle have in the property under section 6 of the Hindu Succession Act .
Nisha
(Querist) 09 April 2010
The property is in mumbai and we are living in pune so where should i hire the legal advisor in pune or in mumbai. And also pls suggest which type of legal advisor i have to approch to.
B.B.R.Goud.
(Expert) 09 April 2010
i do agree with learned counsel friends especially Mr b k r rao has given clear and sufficient means of solution...
nisha...you need to approach the suitable civil advocate of your nearest area...to get frequent touch to get solution...
bhagwat patil
(Expert) 10 April 2010
first of all enter ur mothers namr in ror ie property card. if atall poa were there in favour of younger brother after demise of father it is automatically cancelled .for details feel free to call 9422773303.once share is clarified we will go for mense profit fair rent etc.
Raj Kumar Makkad
(Expert) 10 April 2010
Power of attorney, even if given by your Nana ji in favour of your Mama ji has expired on the day your Nana ji breathed his last and your mother being legally entitled to inherit 1/3 share of all movable and immovable properties left by her father can file a civil suit for partition and separate possession by engaging a local lawyer.
