WILL AND MEMBERSHIP V/S OWNERSHIP
jach000019
(Querist) 01 August 2011
This query is : Resolved
on the basis of the WILL of my late father i.e of the year 1998(not registered/probated) flat premises which was purchased by my father during his lifetime and was in his name, was given to me and my younger brother, therefore on the basis of the WILL, we all the 7 major legal heirs i.e 4 elder sisters(all are married) and we 3 younger brothers, mutually accepted the will and duly executed and notarized the joint affidavit (with notary's book no. on it) regarding AACEPTANCE OF THE WILL and NOC for distribution of the assets among the legal heirs.
In the year 1999 when I had given the application to the society for transferring the flat premises in my and my younger brother's favour, WILL alongwith the NOC of my other legal heirs, my elder brother took the objection to the society regarding not to transfer the flat premises in my and my brother's name stating WILL executed by my father and his given ACCEPTANCE OF THE WILL and NOC( jointly notarized) for the flat premises is bogus therefore flat premises should not be transfered in his younger brother's name (i.e me and my younger brother) therefore my society stopped the procedure of transferring the flat in our favour.
After that in the year 2005 society took the opinion of one of the solicitor and solicitor suggested in the writing to the society that since in the past 5 years objector that is my elder brother has not taken any action against the WILL and other consents executed by himself and since no negatived or restraining order is issued by any court so after taking the indemnity bond from two of us brother society can transfer the flat premises but still the soc. had not transferred the flat premises in our names.
So in the year 2006 younger brother and I filed a case against the society in the dy.registrar u/s 22(2) for getting the membership of the flat transferred in our names and since matter of membership falls in the limit of area registrar i.e dy. Registrar and in 2006 after scrutinizing of all the documents i.e WILL, notarized consents of the heirs, LEGAL HEIRS, NOC of the others legal heirs for transferring the flat in our favour, and correspondence made by my elder brother with the society regarding not to transfer the flat premises in our favour dy registrar gave the decision in our favour and issued the order to the society that since WILL and ITS ACCEPTANCDE AND NOC of the legal heirs is not negatived by any court therefore the flat should be transferred in our names that is me and my younger brother's name therefore society should transfer the flat subsequently soc, also allotted us the membership of the society and also transfered the share certificate in our names.
now my brother had filed the revesion application before the joint registrar in the beginning year 2007 and joint registrar had issued the order of the statusquo after duly acceptance of us i.e me and my younger brother as suggested by our advocate to accept, now after the gap of 4 years i.e is in 2011 joint registrar had issued the fresh order mentioning about the set aside the order of 2006 passed by the dy. Registrar in which membership was allotted and forwarded the matter back to the dy. Registrar for reconsideration after making my elder brother as party.
Now I want to know that what the chances are :
(1) After finalizing the matter in the dy. Registrar, can me or my brother again go to the joint registrar for revision of the matter or since this matter was once admitted there before so now any of us have to go to this authority or to the authority which is higher than the joint registrar regarding membership.
(2) Is it possible for me to drag the matter at any other court but not in the joint registrar because joint registrar unnecessary wastes the time?
(3) If my brother again goes to joint registrar for revision appeal and joint registrar issues any statusquo order than without our consent can the joint registrar can issue any order against our flat premises.
(4) The revision appeal filed by my elder brother or the order which is against our flat premises issued by the joint registrar is challengeable in the higher court or not?
(5) What is caveat will caveat help me this matter to file at joint registrar?
(6) As I have his notarized declaration so with the help of those documents what else I can do against him can I bring any other restraining order against him from any other court higher than the joint registrar for not disturbing me?
(7) Meanwhile if now I am, as executor of the WILL apply for the probate than what will be the status of the matter going at present at dy. Registrar or at the joint registrar if the matter gone for the revision?
(8) If I will apply for the PROBATE OF THE WILL and meantime if my elder brother will take the objection for WILL, the court will issue any order against my brother since he has transferred the shop premises in his name and given it on the rent which is given to him as per the WILL.
(9) Can I give my flat premises on the rent?
(10) What is the difference between membership and ownership if membership is not the ownership than why my brother is disturbing me?
Raj Kumar Makkad
(Expert) 01 August 2011
1. Your brother was a necessary party which was not impleaded by you so matter has been remitted back for deciding afresh so there is no harm if you contest this matter beore Dy. registrar instead of filing revision.
2. No.
3. Generally both are parties are heard and then order is pronounced.
4. Revision can be filed but this shall prove a futile excercise on your part.
5. Caveat is filed by winner party before higher authority/court so that in the event of filing revision/appeal by defeated party, ex-parte hearing o order may not be pronounced. You cannot file cavat as you are loser.
6. You cannot start any other litigation except ongoing and it is in your interest to persue this litigation instead of opening other fronts at the same time.
7. In civil suit, entire ongoing proceeding can be got stayed by filing a specific application in probate case and civil court judgment shall be binding for all.
8. May be.
9. Yes.
10. You ask this question from your brother directly as meaning of membership is not same as of ownership.
jach000019
(Querist) 02 August 2011
FIRST OF ALL THANK YOU VERY MUCH FOR YOUR USEFUL GUIDELINES :
my 4 th question is wrong actually i wanted to write that after the remand back suppose the decision or order of dy. registrar again comes in my favour than is it possible for my elder brother to go to the joint registrar again for revision (thogh the matter was already remanded back by joint registrar to dy registrar ) and than whether filed revision or any other order will be challengeable in the higher court or not because last time the issued the status quo order against my flt premises even before the first hearing .
and secondly you wrote about the caveat so i wanted to tell that suppose here i will be the winner so shall i will be entitled to file the caveat in the joint registrar.
in reply of your 10 question is there any court which should be higher than the joint registar from whom i can bring the order that as per the membership is the question it is rightly passed if my brother has any objection he can challenge the WILL so that atleast first my membership will be established.
thanks again sir,
