Col S N Chatterjee, Retd (Retired Army Officer) 01 November 2014

Sale of joint property willed by father to sons

Dear Sir,

We were a total of five sons and one married daughter besides our mother when our father, who built a house at Allahabad in 1954 from his own money, died in 1981. I am the youngest of the siblings who has been staying away from home since 1963 as I joined the Army as a commissioned officer and was posted to various places all over India, till I retired from the service in Dec 2000. I bought a flat at Kolkata in 2001 and ever since then staying in this flat at Kolkata with my wife (My two daughters-only children of mine- have since been married).

The eldest of our siblings, a sister, died in 1974. Brother no.1,2 and 3 have also died since (in 2000, 2010 and 2014 respectively) At present we are two living brothers and a widowed sister and only the brother no.4 with his family and the widowed sister live in the House built by my father at Allahabad.

Our Father's unregistered WILL was shown to all by the middle brother after a few days of father's death and now in possession of son no.4. The same was accepted by all of us verbally.

In the above WILL it was stipulated that the property will be solely and exclusively owned by our widowed mother till her death. After her death the same will pass on to all the brothers who may live there together. However, it was clearly mentioned in the above WILL that the property shall NOT be sold.

Later some time in 1982/83, my 3rd and 4th brother took my signature on a plain paper stating that the House built by the father will henceforth be a JOINT PROPERTY OF MOTHER AND ALL BROTHERS.

QUESTIONS

1. As all of us are over 70 years now (the widowed sister is 83 years), CAN WE SELL/JOINTLY REDEVELOP THE PROPERTY TO MAKE THE SAME IN TO FLATS.

2. Can the 3rd brother or the widowed sister OBJECT TO THE SALE/REDEVELOPMENT WHICH UNFORTUNATELY APPEARS LIKELY.

3. What are the options before me as I am NOT interested to stay in that dilapidated house. FRANKLY I WISH TO GET MY SHARE OF THE EXISTING VALUE OF THE PROPERTY STANDING OVER A 480 SQ YARDS OF PLOT (approx 350 Sq mtrs) in a prime locality at Allahabad.

4. The details of living sons and daughters of my deceased brothers/sister are given below:-

(a) only a son of my eldest sister.

(b) Only two sons of the brother no.1.

(d) Only one daughter of the 3rd brother.

Kindly enlighten and oblige.

Regards. Yours sincerely,

Colonel Sachindra Nath Chatterjee, Retd

Reply Follow

3 Replies

Advocate Ravinder (Advocate/Attorney) 02 November 2014

The signed plain papers obtained by your brothers when they were alive will have no value in the law. Because for every transaction of immovable property should be registered in the sub registrar office.

Another point is that as the will deed is in the possession of your brother No.4, he and your widow sister can object for the partition you are planning to do. In the will it is stated that after the death of your mother, the property will go to brothers. Hence, you can file partition only after the death of your mother only and not before that. Since your case is complicated, everything cannot be narrated here, hence kindly contact me for further detailed explanation to ravinder2345@gmail.com or 7893011777.

K.K.Ganguly (Advocate) 02 November 2014

1. Legally speaking, the property belonged to your father and you should abide by his wish as regards his property is concerned, even when he is no more,

2. There is a clean dictat in the said Will that the property can not be sold and all will live in it,

3. The property can only be sold, if all the legal heirs unanimously agree, for the sale,.rwise not,

4. In the above event, you need not bring the Will into the picture and all of you claim equal mshare of the property as the legal heirs of your father,

5. A Will, without being probated, has no more value than a srap paper in the eyes of law,

6. So, your wish can be fulfilled, only if all the legal heirs agree for it,

7. You shall have to settle the matter amicably with the brother having possession of the propertry.

T. Kalaiselvan, Advocate (Advocate) 05 November 2014

You must state that whether the Will was acted upon in its full meaning?, if so, the recital of the Will is clear that the property shall not b sold nor can be partitioned. However, upon a collective decision, the property can be dealt with as per the decision arrived mutually among the share holders.