I live abroad, and visit my 85 yr old ailing mother in Ajmer to take care of her twice a year. My elder brother who lives in Jaipur never took care of her or my late father but I suspect will lock the house if and when my mother is no more. How can I prove my possession in such an event? I have an adhaar card on my parents' house address. I pay utility bills with my mom's pension but I operate her pension account. My brother has his name on one of the two water connections. Can I legally update the name on electricity/phone bills as one of the potential inheritors of the property? WHAT ELSE CAN I DO TO PROVE MY POSSESSION AND ACCESS OF THE PROPERTY WHEN TIME COMES? thanks
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i have got an affidavit done by my mother on stamp paper and notarized but the stamp that notarized used says "ATTESTED" instead of "SWORN BEFORE ..." and my lawyer thinks that is INVALID because affidavits are NOT documents that are attested. I have done this affidavit twice but both times the notary did not use "SWORN BY" stamp. DO YOU AGREE THAT THE AFFIDAVIT IS INVALID? thanks
Electricity bill would be in name of owner of the house
you have Aadhar card reflecting Ajmer address
you can have bank account with local bank with said address
passport should reflect it as your permanent address
mother can execute will bequeathing property to you
If the property belonged to your mother and if passes away without making any arrangement then you will be entitled to a share at par with your siblings as a right, in that case you don't need to prove your possession.
Since you have the AADHAR card in that address, that should suffice to establish the fact that you belong to that place.
Your brother cannot take the entire property by depriving your rights, you can drag him to court if he tries that trick.
What is the affidavit for?
The affidavit is generally affirmed or sworn hence the notary will write "sworn or affirmed before me and affix his seal and signature.
Attestation by a Notary public is also legally valid.
If there is no WILL executed by your mother, then you both children have equal share in the property. Once there is no Will, then you don't need to show your possession over the property as your possession will be represented by your brother as a co-sharer in the property. These electricity/water Bills show the possession uptill the possession is not disputed.
Affidavit sworn before a Oath Commissioner will show you "SWORN BEFORE". Better get the AFFIDAVIT of your mother attested and sworn by a duly appointed Oath Commissioner and not by a Notary Public.
Under Section 8(1) (c) of the Notaries Act, every Notary is authorized to take affidavits and an affidavit sworn before a Notary, is admissible as an evidence ...
1. Update on the primary question ---- property acquired and made by my late father entirely from his resources and a suit for cancellation of the "will" presented by my brother, w/o original, no registered will, only one witness who is not alive, and many other weaknesses of the case. With that background and with my mother still alive, how can I defend myself proactively in the unfortunate event of my mother passing away and my brother locking the house? How can I make my stronger case for legal access to the house? 2. update on the follow-up question ---- Two affidavits from the mother were recently notarized, notaries only put the stamp "ATTESTED" but NOT the "SWORN BEFORE" stamp. QUESTION -- are the affidavits valid if the stamp says "ATTESTED" v/s "SWORN BEFORE"? Do I need to redo them?
If there is a case going on in the court, he cannot do any such thing like putting a lock on the door after your mother's death.
You can file a petition to restrain him from doing so.
As you are entitled for a share in the property you will also become a shareholder hence you don't have to prove your possession in the property.
You can directly fight against him.
What is the purpose of this affidavit?
You should be more clear in your question.
If notary is putting his signature with seal then that is also legally valid irrespective of the fact that it is stated as 'attested' or signed before me.
You should not worry about such petty issues.
Redo the affidavits
2) let mother execute a will for her share in property in your name
3) register the will
4) will should mention reasons why she is bequeathing her share to you
- As per law, during the life time of mother , none having any right over her self acquired property , and only after her demise her property would be devolved upon all her legal heirs equally.
- Since, you have Adhar Card with the said property , then it can be a proof of living in the said property
- The name in the electricity connection is not a proof of ownership and it can be used like the Aadhar card for showing the possession in the property.
- If the said affidavit is signed by your mother , then it is valid even if it only notarized by a notary public.
- However an affidavit is not enough for transferring the property , and there must be either a Will or gift deed.
If there is only one witness attesting the Will, then the Will cannot be said to be a validity executed Will in terms of Section 63 of Indian Succession Act and it cannot be proved in court. Nonetheless, if there is no valid WILL executed by your father, then you, your mother and brother will have equal share i.e. 1/3rd share each in your father's property. After your mother's demise, the share will become 1/2 each. As far as your possession in the property is concerned, it will be represented by your brother being a co-sharer.
Notarized Affidavit is equally good and has the same effect as the Affidavit sworn before Oath Commissioner. No need to redo them.
Dear Client,
In order to counter your brother’s will which you realize has several loopholes and is not original, unregistered, and only one of the witnesses to the will having died you should seek legal advice to have a caveat to be placed in court in order to prevent the will from being probated without your knowledge. Collect documents and witnesses who demonstrate that the property was purchased solely by your now-deceased father. As long as your mother is alive, your mother has right to stay in that property and your brother cannot lock you out legally, make sure that her name is also mentioned in your property papers. If he tries to remove you from the house, you can approach a court of law for an order of ejectment. As for certificates, the word ‘Attested’ does not mean ‘sworn before’ and it is recommended to redo notarized affidavits with the correct stamp. It is wise to engage the services of a lawyer who has expertise in property and inheritance law in order to avoid complications.
Hope you find this answer suitable for resolving you problem.
Notorised documents are waste and of no use. Since your father is not duly executed, your brother have 1/3rd share in the property. You can secure your mother 1/3rd share in your name by executing duly executed WILL or registered gift deed.
Possession is already secure but if the property left vacated, he can trespass in it as co owner. But put some portion on rent so that tenant can protest any trespass.
