Division of father’s property made difficult by his ignorance:
subhash banthia
(Querist) 12 April 2014
This query is : Resolved
My father (87), is founder-owner of his retail clothes & readymade shop in Pune & still runs the shop for 12 hrs a day. My younger brother joined him as a partner at his age of 25 in 1982. I, the undersigned, was employed in Mumbai since 1979. My father & Younger brother both running the shop jointly as a partner since 1982, when he ie my brother has also got married. There is no written partnership between them. But according to me, my father has 50% share & at least 10% goodwill over the business profit. The business has grown multi fold since then. I & my four sisters were married before that. Out of this business income my father & younger brother acquired neighbouring & other immovable properties & extended/expanded the shop, home & the business. But surreptitiously without the knowledge of the father & us, he acquired them in his name & his wife. So far nobody suspected any foul play & not questioned. He also spent income from this business for his two daughter’s marriage & his son’s education abroad ie MS (IT) from USA.
Recently my father wished to divide his property between us so that there is no dispute between us in future. However to our astonishment, my brother says all the properties acquired through this business are his. My father was also shocked to know this because he was kept in the dark & was not shown the documents & fed with the false information. He further said he will not allow the partition of this property acquired thru this business.
When i pointedly asked then where are the earnings of the father of last 32 yrs. He says only the stock in the shop is his earning. He has nothing in his name.
Thus he has committed a fraud by cheating the father & all the rest of us and grabbed all the earnings of my father.
I asked my father what is this? He said that he has stopped asking what he does about the cash since he & his wife started abusing & ill-treating him as well as my mother. They are not taking care of my parents health & even he complained about not serving the food properly. He says he had no choice but to work in his own shop /creation to maintain his body & soul together. He used to come to my place in Mumbai but could not adjust Mumbai life & weather and used to go back to his shop after just a week’s stay. We were not aware of these issues at all.
Although, he is so old he still serves the customers in the shop. He has a sharp mind, does calculations correctly, is attentive. He puts 12 hrs a day in the shop while in his own words my brother works in the shop for only half the time. He fears his younger son & his wife because they abuse him & do not respect.
The total area of acquired land is 3000 sqft of plot & the structure over it, just adjacent to our old house. He is planning to redevelop the whole property & sent plans for municipal approval. Under such circumstances,:
1. Should i give notice to get the details of all immovable & movable properties in his & his wife’s name, cash deposits circulating w/ traders, gold/jewellery, etc.
2. Should i give notice to get all the business account books for last 5 yrs at least.
3. My brother, who is keeping all the accounts, is not disclosing any financial details. Once my father knows about all his properties ie Immovables/cash/gold & jewellery etc, then he can gift them as he wishes to all his childrens ie (we two brothers & 4 sisters). But the question is how to make the affair smooth.
ajay sethi
(Expert) 12 April 2014
i presume shop is in your father name . since there is no partnership deed wherein your younger brother has 50%share in said shop your father can by will bequeath his shop to whom soever he desires .
if his younger son and wife abuse him your father can lode police complaint against them .
your father can ask for audited accounts of the business for last 5 years .
let your father prepare list of all immoveable properties purchased by younger son out of earning of the shops . then move court for necessary reliefs
Anirudh
(Expert) 12 April 2014
If at all anything is to be done, it is the father who has to do and not by anybody else.
It is quite understandable that when asked by one of the sons/daughters, the 87 year old father has revealed that how he and his wife are being treated by his younger son and his daughter-in-law. That's all to it. More than that I do not think that the father is interested in getting into any such action as proposed by the querist.
Whether or not there is any partnership in the firm has to be confirmed by him. In fact, the Income Tax returns would reveal that.
Rajendra K Goyal
(Expert) 12 April 2014
Agree with the experts, only your father can do if anything need to be done.
ROHIT SHARMA
(Expert) 12 April 2014
Dear Mr. Subhash Banthia,
1. Have intently pursued the facts and details mentioned in your query.
2. Since you father is a very senior citizen and he cannot now chalk out a course of legal action by himself and since you are well acquainted with the misdeed of your younger brother and would like to sternly deal with him then in that case you will need a General P.O.A. executed by your father in your favour delegating you with legal authority to manage his property and with additional power as to file legal cases in courts on your behalf . Such P.O.A. can be drafted by a local advocate personally known to you and have it registered. This P.O.A. will enable you to settle the score with your younger brother more efficiently and legally.
2. Well, in brief such oral contract or non registered partnership at Will can be dissolved at any point of time once you have the P.O.A. and then you can call for accounting of the assets of your father in more legal manner from your younger brother.
3. This of course is a basically a free advise. In case you wish to have further in depth consultation with this lawyer you are always welcome but then that would be paid consultations at very nominal cost.
4. If need be talk to this lawyer.
With regards,
Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M.)
(M) 0 9 8 2 4 0 4 7 9 7 1.
E- Mail : lawgate1349@gmail.com.
R.K Nanda
(Expert) 12 April 2014
agree with experts.
T. Kalaiselvan, Advocate
(Expert) 13 April 2014
I agree with the opinions of experts. yes, as advised by learned Mr. Rohit Sharma, it will be effective if the author himself jumps into the field duly authorised vide a POA by his father in his favor, there can a solution found to all the scandalous problems.
R.V.RAO
(Expert) 14 April 2014
sri rohit sharma's advice is helpful.the querist may follow the same.
get POA and handle all issues including ascertaining the actual financial position, and take tough legal actions to bring the prodigal son into a right frame of mind , as you are weaponed with POA.
go for equal sharing of entire property among all legal heirs male&female in consult with your father and mother. assumed the entire property is self acquired by your father.
Guest
(Expert) 14 April 2014
Well advised. In addition, you may requisition IT Returns of the business, your father and your brother & his wife individually from the IT Department for the last 5-10 years through RTI. Further, you may also call for the property tax returns from the Municipal Corporation in the name of the business, your father, brother and his wife. That may help you to give some picture about the income and properties of the business and other individuals to take some solid step instead of striking in the air even after you get POA.
