Self acquired property gifted to one among two brothers.
advice
(Querist) 30 October 2009
This query is : Resolved
Hi,
This is with regards to an issue withSelf acquired property gifted to one among two brothers.The property is self acquired by parents and has been gifted (deed) to younger brother due to love and affection and being the only one to take care of them. However, after several years being in a sorrowful situation the parents gave shelter to the elder brother to stay with the family (however the elder brother found place in the house by orally agreeing to pay monthly rent to parents). The property being old when the younger brother (owner -as gifted)planned to construct the house, the issue started. The Elder brother claiming to have equal share in property refused to hanover the pocession and obstructed the construction.
Elder brother currently occupies First floor and younger brother the ground floor along with Parents (Mother alive , father deceased). However , this issue was taken to court settlement where the elder brother argued saying the property is not self acquired. However the proof of self acquired is with the parents. But due to poor handling of the case the court dismissed the case due to not providing proof of property being self acquired by yonger brother:o(.
This happened 10+ yrs ago,and after that the younger brothet sought of lost confidence with trials so did not file another case. now request your expert comments and suggestions how to proceed in the case etc.
Thanks!
Y V Vishweshwar Rao
(Expert) 30 October 2009
1- A Suit filed by Father and Younger brother on the ground of Self acquired proeprty of father/mother /parents and gifted to younger brother , the same is not proved - suit dismised- 10 years ago! Any Appeal filed against the said Decree !
2- Trials-! is it compromise/Settlement trials - after dismissal of the suit ! or Suit trials ! I think it is Compromise trials !
3- A Claim rejected in a previous suit ( 10 years ago ) , can not be put forth in another/ subsequent suit -the said decree became final as there is no appeal against it .
advice
(Querist) 30 October 2009
Hi,
Thanks for the quick responce!!.
1)No appeal was filed.
2)yes, compromise trials were tried, however inspite of having everthing in younger brothers favour, the elder brother insists to sell the house and have half share so even it didnt work out.
Thanks!
Raj Kumar Makkad
(Expert) 30 October 2009
As the house was self acquired of your father and he gave it to his younger son by way of a will duly executed so better obtain a probate against the will and get it executed so that your brother may not be able to sell it and also obtain a stay order against any effort to dispose off the property by your elder brother.
Despite of above mentioned suggestion, I suggest you to negotiate with your brother and amicably settle the things so that unnecessary enmity may not remain in the coming generations and you both may leave with peace and trust.
advice
(Querist) 30 October 2009
Hi Sir,
I liked your saying to live with peace, however the younger brother wants the same and have the pocession of the house for which he is the absolute owner , as per the gift deed by parents.
But, the elder brother inspite of having no right on the property as I look at it on a general view (though I may be wrong if he stil has any right as per law)insists of getting the house sold and having half share or making unreasonable demands for any compromise effort made by younger brother.
So in this regards, as younger brother has all rights/evidences in favour, what could be the ideal way of dealing by Law :o)
Thanks!
Dr. Jyothi Vishwanath
(Expert) 31 October 2009
if the property was gifted, has the younger brother got the property registered in his name. if not why
advice
(Querist) 02 November 2009
Hi,
The younger Brother has already the property registered on his name. Now that the elder brother is also staying in the same house on first floor, issue with getting the full pocession of the property so that younger brother can construct the house (Currently only 40% of house is in usable condition rest dangerous, may collapse any time being old).
Thanks!
Vineet
(Expert) 02 November 2009
If the younger brother has got property registered in his name (presumed by due process of law i.e. by obtaining probate against the will), the question of self-acquired property should not have arisen. This case more appears to be possession which the elder brother is exploiting being monthly tenant.
It is advisable to negotiate with your elder brother and settle the matter.
advice
(Querist) 02 November 2009
Hi,
The younger brother has :-
- gifted deed from parents.
- self aquired property of parents, proof
available.
- registered on his name legally.
Due to poor handling of the case to get back the full pocession of the property, and free the same from elder brothers forceful acquistion the issue is peding. Actually there was some cheating/fraud been done in the wilfull dismisal of the case and an attempt to make the younger brothers position weak by his own appointed lawyer :o(.
1)Need action items to deal and sue elder brother to get back pocession, other than negotiating with the elder brother.
2)can we proceed against the appointed lawyer whose willfull act to get the case dismissed for commiting fraud.
Thanks!
advice
(Querist) 04 November 2009
Hi,
Thanks for your valuable comments till now.I am sorry and take back this query given above for "2)can we proceed against the appointed lawyer whose willfull act to get the case dismissed for commiting fraud."
May be this is not apt to be posted on the Blog :o).
Please guide me on Point 1)"Need action items to deal and sue elder brother to get back pocession, other than negotiating with the elder brother.
Thanks!
