Dispute
narinder_6in
(Querist) 04 January 2012
This query is : Resolved
I (alongwith my family) am living in a joint family with my father, and my brother (alogwith his family). The house is in the name of my father. My father is very old and on bed. I stay out of house for work and brother and his family are always at home. I am concerned that my brother or someone from his family may get a will signed by father for the property or any other asset of my father because till now everything is common. Please advise what remedy should I take so even if he is successful in getting it done, i can defend myself.
Also my brother while living in joint house has made 3 properties in his own name out of which he has also sold one. Is there any way I can get that to be treated as common property.
Further, my nephew (brother's son) beat me up yesterday and I am concerned that there could be quarrel again so what remedial action should I take for example, FIR etc. so tomorrow I am a legal position where I could defend myself
Adv Ankit Gupta, 09812153530,
(Expert) 04 January 2012
Dear Mr. Narinder Ist tell whether ur Property is still Joint. Or Property ur father have come frm ur forefather. than i will tell easily.
narinder_6in
(Querist) 05 January 2012
The property was acquired by my grandfather and my father jointly. The registered documents are in the joint names of my grandfather and father. I am concerned about my father's share.
Deepak Nair
(Expert) 05 January 2012
You can file a suit for partition.
If your brother has earned the property from his own earned income, then that is not a joint family property and you cannot claim any share on that.
narinder_6in
(Querist) 05 January 2012
Thanks DeepakJi - Just want to confirm if I can file a suit for partition and claim my share although my father is present and my grandfather has expired leaving behind his heirs also. Should it not be my father who should be filing a suit for partition as the property is joint with my grandfather and their are other heirs of my grandfather also.
On my share I believe I would hace 1/3rd of my father's share since I have a brother and a sister (who does not live in India and is unlikely to return).
On the property acquired by my brother staying in the same house, if I include that in the partition suit, please confirm that my brother will have to prove that he acquired it out of his own income because he does not have any own income and runs a small shop at home which my father had started. But since he is not able to work now, he has been taking care of all activities of the shop as I am working separately
Please advise
Thanks
Deepak Nair
(Expert) 05 January 2012
A suit of partition can be initiated by even youyrself.
Your share will not be 1/3 since your brother and sister who are abroad are also the legal hiers, their share too will be considered in partition. Otherwise they have to release or relinquish their share in the property.
Your brother shall prove that the property earned by him is actually earned by him through his own income.
narinder_6in
(Querist) 06 January 2012
Deepak Ji - So this means that the Court will award me 1/4th share of my father's property and 1/4th each to my brother, sister and father. Also my sister is not in India and is unlikely to come back even if the Court calls her. So in that case, does her share go automatically to the remaining three parties equally.
Please advise
Raj Kumar Makkad
(Expert) 06 January 2012
The share of your sister shall remain in her favour only even if she do not appear before court as the same cannot be snatched by any law.
prabhakar singh
(Expert) 06 January 2012
You state that your grand father and father jointly acquired the properties then if their respective share is not mentioned in the sale deed,it shall be treated 1/2 of your father and 1/2 of your grand father and accordingly in1/2 of grand father,your father along with his children born before your grand father shall be treated as coparcener in equal share but the rest 1/2 of shall be treated exclusively of your father about which he can write a will.
You can not successfully claim any share in the properties lying in exclusive name of your brother.
In the given scenario you should try to obtain a certificate of doctor that your father has gone too sick and mentally not capable to take any independent decision with understanding of pros and cons.
The quarrel and apprehension of documentation should be reported to police.
narinder_6in
(Querist) 06 January 2012
Thanks Prabhakar Ji - My father keeps on signing on different documents for my brother like bank accounts, etc since he looks after them. Till date I have never interfered in what he does. Willfully, he will never write a will in favour of my brother. But my brother could get it falsely done because my father is with him all the time and I am in office during the entire day. I cannot speak to my father also about this because I do not want him to get disturbed as I said that he is on bed and not very well and do not want to create any problem from him since he suffering from high blood pressure also. He may have already got signed a will also by now.
Is there a way that even if he gets a will signed from my father in his favour that in future I can negate that will. Means any step I can take now so the ill intentions of my brother, if any could be taken care of when he tries to use that will.
My father understands the situation because he has not settled my grandfather's share with his brothers because there is another property of my grandfather in their possession which they do not want to share with him. But out of trust since he keeps on signing may documents for my brother to carry out the affairs of home smoothly, I am concerned he may get something like a will also signed from him without my father's knowledge.
Otherwise you have stated the case very correctly and the position of share is as stated by you - Thanks
ajay sethi
(Expert) 06 January 2012
you are working and earning a decent salary . your brother is staying at home all the time . for a father although both sons are equal the fact remains that one son is earning a decent salry and other is unemeployed . the sympathy of father would be to provide for son who is not working . he knows you can take care of your self .
your father is bedridden and suffers from high blood pressure too . you should assure your father that you are not interested i n the property and your father if he so desires can bequeath his property to your brother if he so desires .
narinder_6in
(Querist) 06 January 2012
Sethi Ji - You made a nice presumption but the facts are not so simple. My brother is also well educated and was doing a Govt job which he quitted and joined private sector. He quitted the private sector also and started his own business. All this money was coming from family income. He failed in that business also and because of this my father after retirement started a Kiryana shop at home. My brother since he was not doing anything just started sitting on the shop and till date he is doing that and earning from there also. I was studying till the time the Kiryana shop was opened and even for my studies I have not taken a single penny from from home and took tuitions to bear my expenses all that time. Even after I started working, I have never taken a single penny from home till date and in fact paid at home whenever required and also monthly payment for my and my family expenses. He has brought up his entire family from my father's money got his children married and what not. Only thing he can say is that Rs 2 lacs was spent on my marriage which was my father's money and not his own. His has built 3 properties out of my father's money in his own name which he would not allow me to even look at today. There could be more also as this is what I am aware of. The point is that till date I have never asked for anything but today when his wife and his son say that the house we are living in also belongs entirely to them and I should get out, I have a problem. And the last point, my father is not in any way tilted towards him - its just that he was clever enough to use him.
narinder_6in
(Querist) 11 January 2012
I went to the ploce station to file a Non-Cognizable complaint but they told to be bring in written a complaint stating about the quarrel or tell the beat officer verbally about it. Also I could state in that letter about the fact of my brother or someone from his family getting a will signed from my father without his knowledge. Please advise if a copy of this letter would be sufficient to act as a deterrent action against any future quarrell and negating the effect of the will if my brother is able to get it signed or he may have already got it done also. I overheard my brother speaking to his wife and son also about the fact that he will get such signature and throw me out of the house.
narinder_6in
(Querist) 15 January 2012
Can someone please respond to my query
Thanks
Raj Kumar Makkad
(Expert) 15 January 2012
Your query has already been responded very well. If your brother adopts illegal means then he shall have to face even criminal consequences but if he get voluntarily will in his favour then you can do nothing if the property is self acquired of the testator.
ajay sethi
(Expert) 15 January 2012
if your father bequeaths his property yo your brother on account of his free will the said will will take effect on your father demise . till then your brother cannot throw you out of your house
narinder_6in
(Querist) 16 January 2012
Raj Kumar Makkad Ji,
As I mentioned earlier, the property is in joint name of my father and grandfather. My grandfather has other heirs also. It has not been partitioned also. As mentioned by you that the property should be "self acquired" by my father only then his will has any legal value. The property was jointly acquired by paying 50% money each with my grandfather in 1957.
So, does that mean that his will would not have any legal value.
Further, my father would never write such a will in favour of my brother in any case. It is just that my brother keeps on getting many documents signed from him and he never asks about it - he would never ask me also. He may try to get it signed as I overheard him talking in his family of such intention. There is good trust and faith so far and my father does not know of the recent quarell also. So I am concerned that he may get a Will signed which of course he would use after his demise. Is there a way I can get some legal document right now so if my brother tries something like this, I could save myself by producing it.
