Claiming self acquired property to be joint family property
anish
(Querist) 11 September 2012
This query is : Resolved
Sir
My father died 11 years back leaving behind a WILL wherein I was appointed as an executor. My younger brother was not of proper conduct so majority of assets were bequeathed to me by my father. As an executor I had intimated about WILL in writing to brother and he had replied that he has no objection to WILL. Accordingly I started acting upon WILL and got assets transferred as per my father’s wish. Probate was not taken because properties were not in any metro city and no one had objected to WILL. Now after 11 years he has filed suit in Mumbai court claiming his share in my father’s properties which are already transferred in my name. Apart from my father’s properties transferred in my name he has also claimed that other properties in my name and in my mother’s name which were acquired long back were also acquired by my father so he has put claim on them too and asked to appoint a court receiver and restrain from creating third party right. My and my mother’s properties were acquired by me and her out of our own funds.
1) Can he make such claim as far as mine and my mother’s properties are concerned?
2) Does the burden of proof lies on him to prove that properties were acquired by my father in my and my mother’s name, then only court will hear him or court first gives stay and we have to prove that we have purchased properties?
ajay sethi
(Expert) 11 September 2012
do you have the letter written by your brother claiming he has no objecton to the will . need to see suit papers filed by your brother to advise .
you have a good case on merits . suit is filed after 11 years .
if he says properites are acquired by your father in mother name and your name you have to satisfy the court that they were purchased by your mother of her own earnings .
anish
(Querist) 11 September 2012
Yes sir.
In his own handwriting he has said he has no objection to WILL.
Does he not have to produce evidence to court as to how money was paid from my father's account? Because no money was paid by my father.
ajay sethi
(Expert) 11 September 2012
you can deny that money was paid from your father account . your brother will have to prove the allegations . if you have evidence that money was not paid from father account produce it before court .
V.Mahadevan
(Expert) 11 September 2012
Answer to Q.1. is in the negative in much as the properties were self acquired and self-owned.
As regards Q.2 it appears that the said brother had in writing expressed that he had no objection to the WILL(disclaimer). And following this, the assets were transferred in strict obedience to father's wish and by a due process in law.
The properties, presently, are subject matter of legal proceedings in a court.
In my view,the burden of proof will squarely rest upon the shoulders of the claimant i.e. the younger brother,given the
backgrounder in the query.
mahadevan
