Legality of a family settlement and its value against will
HARSHVIR SINGH
(Querist) 23 September 2013
This query is : Resolved
Hi
I am from J&K and have case going on in J&K civil court:
facts of the case are below :
In 1998, family settlement was agreed between my grandfather, my father and my uncle regarding our house :
a portion of our house was sold to 3rd party and its money went to grandfather.
Rest of the house was divided 40:60. 40% was given to my father, and 60% was kept by my grandfather and uncle jointly. It is mentioned that out of that 60%, 40% is my uncle's share and 20% is my grandfather's share.
It is further mentioned in the settlement that after the death of both of my grandparents, house should be divided 50:50 among my father and my uncle.
My uncle either need to pay 10% in money or change partition line to make partition 50:50.
This document is not registered but it is implemented. 3rd party portion was sold and house was partitioned 40:60.
in due course, my father and grandfather died.
Now we are living in our 40% and my uncle and grandmother are living in 60%.
My query is that:
Can my grandmother make a will saying that my uncle can keep her 20% share and no need to divide the house 50:50 after her death ?
Will this will be legally valid ?
Family settlement is not registered. Can it be changed by a will to which we are not party ?
Second query is :
Our water tanks and septic tanks are still common. Septic tank is on our side and water tank on my uncle's side.
There is nothing mentioned in the family settlement about this.
Can we get it separated by legal process or it has to be a mutually agreed decision ?
Kishor Mehta
(Expert) 23 September 2013
Sir,
[1] An unregistered Family Arrangement is not legally valid.
[2] However, if this is signed by all the beneficiaries and properly witnessed then it can be submitted to a Civil Court, provided all the signatories concur to the written agreement.
[3] On the death of your Grandfather, if he has died intestate, his property has to be equally divided among his legal heirs, in this case your Grand Mother, your father and your uncle.
Good Luck
Kishor Mehta
HARSHVIR SINGH
(Querist) 23 September 2013
thanks. in our case, my grandmother and uncle has agreed to the settlement in court on record.
My query is that can my grandmother make a will giving her 20% share to my uncle thereby violating the family settlement ?
What will take precedence ? My grandmother's will or family settlement ?
Raj Kumar Makkad
(Expert) 23 September 2013
As your mother has been par of the registered family settlement, she cannot violate it and even if the same is violated, the will can be got set aside on that ground.
Rajendra K Goyal
(Expert) 24 September 2013
Well advised by the expert raj kumar makkad ji, nothing more to add.
HARSHVIR SINGH
(Querist) 26 September 2013
Apologies. Some changes here. My grandfather and uncle have denied that settlement was acted upon. Also they claim that my parents got the agreement signed by threatening their lives.
And we are just living as licencees with permission of my grandfather but without any right on property. After hearing both parties court gave an interim order for status quo to be maintained on position and possession of property and later that order became absolute. This month we wanted to whitewash our portion of the house and for that we commenced with plastering of walls - not whole walls but only the boundary wall which is in our portion and that too just removed old plaster and did new plaster.
But my uncle complained in court that we are raising construction and got order from court directing police to stop construction and police is not even allowing paint and whitewash work.
Before starting with this work we had checked with our lawyer and he said that no permission is needed for this and we can go ahead. But now our work is stopped. My query is that can we do this whitewash and paint without violating status quo on position and possession ?
HARSHVIR SINGH
(Querist) 26 September 2013
Apologies. Some changes here. My grandfather and uncle have denied that settlement was acted upon. Also they claim that my parents got the agreement signed by threatening their lives.
And we are just living as licencees with permission of my grandfather but without any right on property. After hearing both parties court gave an interim order for status quo to be maintained on position and possession of property and later that order became absolute. This month we wanted to whitewash our portion of the house and for that we commenced with plastering of walls - not whole walls but only the boundary wall which is in our portion and that too just removed old plaster and did new plaster.
But my uncle complained in court that we are raising construction and got order from court directing police to stop construction and police is not even allowing paint and whitewash work.
Before starting with this work we had checked with our lawyer and he said that no permission is needed for this and we can go ahead. But now our work is stopped. My query is that can we do this whitewash and paint without violating status quo on position and possession ?
Kishor Mehta
(Expert) 26 September 2013
Sir,
As the matter was sub-judice it would have been advisable to explain the need for white-washing to the Court and take its permission.
Good Luck
Kishor Mehta
