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babu samueal (dr)     25 August 2014

Expartee decree vs will

my father has self acquired property,we are 5 children.elder brother filed case stating as ansestral prpperty and got an expartee  decree for 1/5 in all land 1996.my father meanwhile made a WILL before his death but after decree.we have worked on our property and developed it.my brother now claims 1/5th in all our land.he even has a seperate share given by our father.he now sell 1/5th of all land based on the decree.
 
problem
1 we all brother were made expartee. can we apeal against him now after 18yrs
2 will the self acquired property will stand against expartee decree aginst us?


Learning

 1 Replies

T. Kalaiselvan, Advocate (Advocate)     30 August 2014

What were you doing for all these 18 years?  There are very remote chances to setting aside the exparte decree after a gap of so long years.  Whether there was a final decree on the suit after the preliminary decree passed exparte?,  If not, without a final decree award of identifying his share in the property, your brother cannot take away his 1/5th share on his own, you can file a permanent injunction suit restraining him from taking away his undivided share  without final decree.  If he applies for final decree, you can implead yourselves as party and can file a petition to set aside the pre-decree exparte order and contest the case on merits based on your father's will.  Consult your lawyer and proceed as per his advise.


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