File suit for partition for division of property by metes and bounds
2) seek injunction restraining sale , creation of third party rights by your brother
3) seek appointment of court receiver for the property
Forceful occupation
My father made a will and it was registered. Subsequently he during his lifetime he cancelled the earlier will and wrote on a stamp paper signed in presence of two witnesses(the witnesses also passed away but their sons and daughters are alive). He has mentioned that law of inheritance will prevail and mentioned the names of his beneficiaries - 1. His wife, 2. His Son, 3.Eldest daughter, 4, His middle daughter 5. His youngest daughter. He passed away in 1988. .His wife also passsed away in 2019. Till date a legal procedure to divide the property in four equal parts has not started. Now I apprehend that my brother might try to occupy the entire house forcefully. Can this be prevented or is there any legal step can be taken to prevent forceful occupation by my brother?
Asked 3 years ago in Property Law
Religion: Hindu
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11 Answers
1. A WILL can be executed any number of times by the Testator and the latest/last WILL supercedes all WILLs executed till that date. Registration of WILL is not compulsory but only optional.
2. In the instant case, as per your narration, your father had written on a stamp paper that the law of inheritance will prevail and had detailed the names of legal heirs in the presence of two witnesses. This will be treated as the latest WILL executed by your father.
3. In other words, the share in the property gets devolved equally to son, eldest daughter, middle daughter and youngest daughter, I e., 1/4th share each.
4. To claim your individual share, send a legal notice to your brother for getting your share as per your father's latest WILL. If there's no positive response from him, file a suit for declaration partition and separate possession of the property by metes and bounds.
5. Since your brother is also one of the beneficiaries, he will also be entitled to 1/4th share on par with his siblings and hence your brother can't deny equal share to his three sisters and cannot forcefully occupy the entire property and if he does so, follow the instructions mentioned under (4) above.
Dear Sir
As per hindu inheritance laws, you are entitled to a 1/4 share in the property of your deceased father.
Send a legal notice to your brother claiming your share.
Have the property partitioned as per law.
Thank you
Get tge WILL validated by the Court. Once done it is safe and all can enjoy.
Regards
G.RAJAGANAPATHY
High Court of Madras
- The first registered will is cancelled by second unregistered will. If the second will is in your possession of power you can seek execution of that through filing probate proceeding in the district Court.
- If the second will is not in you possession or power or unlikely to be brought to light, you have to seek partition and separate possession to property forcing the production of will.
- For execution of will or filing suit for partition, your presence is not required in India. You can execute a GPA giving power of filing legal proceeding to your friend/relative and get the attested by Indian consulate online. Your friend/relative in India is entitled to file legal proceeding on your behalf.
1. Who is holding the said last will of your father?
2. If you are holding the same then file an application praying form grant of probate of the said will. If not,
3. File a partition suit claiming your share of your deceased father's properties,
4. In the above incidence, the person holding the will shall place the will before the Court.
5. If law of inheritance has been desired to prevail and all will get equal share then it will not be prudent to seek probate of the will and in that case you should just file a partition suit along with an application u/o 39 r 1 & 2 praying for an order restraining your said brother selling the said property or any share thereof.
You file a suit for partition and claim your legitimate share in the property with separate possession.
In the same suit you file an application seeking injunction against him to restrain him from alienating or encumbering the property in any manner till the disposal of the main suit.
You need to take injunction against him from court,
Yes
file a suit in Court and seek injunctive reliefs
- Legally he cannot take entire portion of the property but he has right the portion as mentioned in the WILL
- The last will even on a single paper is legal if were written in the presence of two witnesses.
- If there is apprehension then you can file an Injunction suit before the court for restraining him from selling or occupying any portion of the property without the consent other beneficiaries.
- Further, if there is dispute and not agree as said in the WILL then file a probate petition before the court for giving a legal color of the WILL and to get the share accordingly.
Dear Sir,
- You can file the case for separation through your counsel.
Regards
Vivek Arya
