MATTER My Father and mother after their retirement bought plot and construct house their on from their fund and gratuity in 1984. Sales agreement for plot was in name of my father. In 2005 my Father made a WILL wherein he has mentioned following: WILL is registered. My father died in 2008 He has mentioned all his immovable and movable property in details afterwards WILL says: After my death my wife will be sole owner of my all immovable and movable property, nobody will ever have any rights/claims in this. After my wife’s death my three sons and one daughter will have equal share in all my immovable and movable property As per fathers WILL we have muted the property and now my mothers name is on the property card as owner ISSUES My mother (87 years old) wants to sell the house and distribute the money to all us. Other brothers and sisters supporting Mother for disposal of house as per her wish. One of my brother staying in the house with his family opposing it, neither he is vacating the house nor he allowing her to sell/donate it. My brother is not vacating the house and insisting her that she should transfer house to him. She lodged police complaint also, Police says its legal issue we can’t help in this. Original Sale Deed of the House and Fathers’ WIIL copy is with my brother who has occupied the house and he is not ready to give it to anybody. My queries are: What are the remedies my mother have to get her house vacate ??? legal case may take long and considering her age she is not keen. Can she get any advantage as senior citizen as per Order issued by Registrar Bombay High Court for preferential treatment for disposal of senior citizen cases ???? Our Advocate says my father WILL have problem, it has mentioned - after your mother’s death all brothers and sister will have equal share, so she can’t sell the property. Need your advice on this query Will this clause can create problem for disposal (sale/donate) If my mother wish to donates this house to Charitable Trust will Trust have to face any legal problems Can my mother donate the house without Original Sale Deed and “WILL” ??? she has copies of the same. What all documents she is supposed to sing/make to make it full proof donation process. Where she can register these documents concerned Registrar Office or she can do at home caz she is unable to travel and we dont want Power of Attorney to anybody to create any doubts?? If my mother wish to give it to any one or two amongst brothers - which is the best document which can’t be challenged or will have sound security WILL or Gift Deed
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Mother should apply to senior citizen tribunal against her son
2) seek orders to direct son to vacate the property
3) mention that he is forcing her to transfer property in his name
4) enclose copy of her husband will
5) as per will mother is absolute owner of property and children have no rights on the property
6) she can dispose of the property
7) she can donate property to trust
8) mother can execute gift deed in favour of 2 sons
Firstly, as per the information mentioned in the query, makes it clear that the will is in question for sure as per the wordings of the same.
Secondly, you need to understand that will says only after your mother’s demise, the property would dilute on you all.
Thirdly, so she has only limited right for sure.
Fourhtly. But if the same is interpreted otherwise then it means that she doesn’t have to wait till the time she dies, she can alienate the property.
Fifthly, she can file a civil suit for allowing her to sell the property and distribute the money amongst you all.
Mother has to file an eviction suit in the civil court to take back the possession of the property, also for fast redressal she can file a complaint before senior citizen welfare and maintenance tribunal seeking eviction of son from property.
Further in civil suit also she can file an application to expedite the case before the same court.
Since in her life she has absolute right she can sale it.
No it wont create problem as absolute right are given not just the life interest.
The certified copy of the sale deed and registered will can be obtained an FIR for original that is with brother can be filed that it is lost and on certified copies it can be sold.
She can donate on same.
Under registration act there is section 32 under which registrar can be requested with application to come home for registration.
Sir stamp duty can be paid and it can registered for full proof donation,
She can register a gift deed in her life to dispose the property to two brothers in life.
1. the statement in the Will that after wife's demise the property will go to children in equal share may pose a problem
2. it appears that intention of your father that his property should be enjoyed by his family members
3. the above is one interpretation
4. another interpretation of that statement would be that the father wanted your mother to become owner of the house and in the event she dies the property should go to his children
5. so once the mother becomes owner she can do whatever she wants with the property of which she is the owner
6. even under the intestate succession if your mother passes away the property will go to the children who will be the legal heirs
7. one solution would be to ask the opposing brother to buy the property from your mother by excluding the value of his share in the property which he claims i.e. he can buy the balance 3/4th share
8. the above is to solve the problem amicably
9. if the son does not submit to this request then your mother as owner will have to file an eviction suit against the son
10. your mother can sell the property or donate it to the trust by a gift deed. However the buyer/trust will be accepting the transfer at their own risk considering any challenge the son may make against this transfer by invoking the clause in your father's Will. However his challenge will be limited to only his 1/4th share because as per the Will all children are to take equally after mother's demise
1. Yes she can, she can file a complaint against the son at the Sr. Citizen tribunal also.
2. Till the death of the mother, the mother is the absolute owner and as such the will shall not create any problem per se.
3. Yes your mother in her lifetime can do anything with the property as per her wish.
4. She will have to go to registrar office once for transferring the property to a trust.
5. She may the give the same by means of a gift deed.
Regards
1) As the WILL is registered so it is authentic document and your mother has right to live in it or could give property on rent or lease for limited period, till she is alive lease will be enforceable after that not, because as per WILL children will become obsolete owners.
First of all you should understand the understand the recitals of the Will bequest.
As per Will, your father bequeathed the property to all the members of the family, i.e.,l he has clearly stated that your mother can enjoy the property till her lifetime and subsequently the properties shall devolve equally among his children.
This clearly indicates that your mother has lifetime interest alone. She cannot sell/transfer/alienate the property in any manner during her lifetime.
Your advocate's opinion is absolutely right.
In fact she cannot evict her son who is occupying the house for any reason because legally he is also entitled to a share in that property.
Better solve this issue amicably or you will be in problems forever till it is getting disposed.
“After my wife’s death my three sons and one daughter will have equal share in all my immovable and movable property” Some lawyer says this clause will be in force only if my mother doesn’t dispose or make any will of the property in her lifetime. Till her lifetime she is sole owner of the property and she can dispose as per her wish Re. mutual settlement My mother has given him the offer that he should pay three brother their share as per market rate and she will transfer the house in his name, but he is not ready to pay any thing
Sir mother is absolute owner she can dispose the property.
If brother is not ready then mother can dispose the property on her wish.
Some lawyer says this clause will be in force only if my mother doesn’t dispose or make any will of the property in her lifetime. Till her lifetime she is sole owner of the property and she can dispose as per her wish
It is a misrepresentation of the recitals, legally it can be fought to nullify this understanding.
Re. mutual settlement My mother has given him the offer that he should pay three brother their share as per market rate and she will transfer the house in his name, but he is not ready to pay any thing
Then let them settle the matter in court of law.
the deceased person leaves a spouse who is on the title deeds of the property as a joint owner, then the property can be sold if the surviving wishes it to be disposed of.
However if the deceased person only is named on the title deeds of the property, then probate will be required before the property can be sold.
It is true during your mother lifetime she can dispose property as she pleases
2) since brother is not willing to pay brother their share mother is not bound to transfer property in his name
In my opinion the correct interpretation of the bequest in the Will has to be that after me my properties will go to my wife and if she dies then they will go to my children
That is the wife is given more than a life interest
Its only after she dies, that property will go to children
Considering above, in my view your mother can sell the property as owner and without any reference to her son who has no right at present in the property
If he has any issues then let him move court and get a stay
No, the mother only has residential rights.
She can not transfer or move the property.
The right has been given to her on a condition and is not unconditional.
Regards