• Property divide

Respected sir/madam
We are 3 elder brothers and one younger sister.I am the second son .we have fathers own earning property of 85x35 land with 3 houses. first half 2 houses of ground floor and first floor,second half only ground floor.my father has constructed this for his three sons.[For us].
Eight years back my younger brother got inter caste marriage without the acceptance of family members and went out. My elder brother forced my father[Brain washed] and made joint will with witness of my paternal uncle and his friend in the name of  myself and elder brother . when I asked about this ,he said it is only for safer side and  in future it can be shared among three brothers. we are convinced.
Before two years back my parents were very eager to call back my younger brother back. when he came he was thrown out violently by my elder brother.This has happen in my absence. in this issue my father became sick and paralyzed and lost his life,before his death he asked us to share this property among three sons[orally].
Now my younger brother is willing to stay in one of these house and asking the share of property but this is not accepted by my elder brother.
Other than this we have 1 acre of agriculture land of my fathers own earning property, it does not have any will. Recently my paternal uncle and his friends have decided to give 50% of acre to my younger brother[instead of house] and we all made agreement and also signed by elder brother. But now he is opposed for registration and that agreement. he says the agricultural land has to be divided into 5 shares[including my mother and sister]. But I am willing to give equal share in home and agricultural land.
Kindly suggest that suitable solution for this problem and oblige at earliest. We will be grateful to you.
Yours faithfully
Asked 3 years ago in Property Law from Ramanagaram, Karnataka
Religion: Hindu
1) has probate been obtained of will ? 

2) your brother can file suit for partition to claim his share in properties of your father 

3) if elder brother relies upon the will your brother can dispute the will as it obtained by coercion 

4) you and your mother can give evidence in this regard that your father was forced to make will 

5) no probate would be granted by court and your brother would get his share in various properties of your father 
Ajay Sethi
Advocate, Mumbai
46789 Answers
2768 Consultations

5.0 on 5.0

Hi, as per will you and your brother are the absolute owner of the property because it is self acquired property and will come into affect the death of your father so other members of the family have no right to claim share in the house property.

2. As far as Agricultural land is concerned  concern all the family members have rights in the agricultural land so legally it has to be divided equally.

3. You have other options if you don't want the property as stated in the Will then if your brother agree then you better destroy the will and divided the property in 5 equal share as you are not relay on the  will provided will is not registered before the Sub-Registrar. 

Pradeep Bharathipura
Advocate, Bangalore
4561 Answers
204 Consultations

4.5 on 5.0

1. In so far as the land in respect of which your father has made a will is concerned, it will devolve in accordance with what he has stated in the will. According to you, your elder brother used undue influence on his father to get him to make the will in his favour. You or your younger brother can challenge the will in the court on the ground that it has not been made by your father with his free consent. The nature of undue influence exerted on your father will have to be proved in the court. Unless and until the will is set aside by the court it holds its ground and remains a charter of rights.

2. The second land, in respect of which no will has been made, vests equally in all the children of your deceased father. It seems that you have entered into a partition deed to partition the land. Unless the partition deed is registered it is waste paper. A partition deed, in order to be legally enforceable, has to be registered. You or your younger brother can file a suit for partition to cull out your share in this land
Ashish Davessar
Advocate, Jaipur
23140 Answers
640 Consultations

5.0 on 5.0

Legally, since the Will which was the last one made by your father, had come into force upon his sad demise, the properties bequeathed in the Will shall devolve on the beneficiaries as per the recital made therein. Therefore your elder brother is right in denying your another brother a share which has not been entitled to him by your father in the Will.
The intestate agriculture property will devolve on all the five legal heirs of the deceased.  Though it was agreed that the 50% share to be given to another brother in lieu of any other property, if the elder brother is not willing  to this agreement, the matter to be decided legally. In the given situation, if you really interested to forego your share in the property and similarly if your mother and sister are ready and willing relinquish their rights on the property, all the three of you can jointly relinquish your rights to share in the said property by executing a registered release deed in favor of your another brother, after which, instead of original 50% agreed share, he may be benefited to 4/5th share in the property, discuss with your mother and sister about this and take a decision, you elder brother's consent need not be taken for this decision.
T Kalaiselvan
Advocate, Vellore
36925 Answers
403 Consultations

5.0 on 5.0

In this situation as per the will your younger brother has no right over the properties bequeathed in the Will. But if your younger brother challenge that will and file a case before the court and the attesting witness in the will also supporting him to say that the will was made by coercion then the veracity of the will challenged. If so all the 5 legal heirs have get shares equally.

In agricultural land the legal heirs of deceased has equal share.
Ajay N S
Advocate, Ernakulam
2823 Answers
47 Consultations

5.0 on 5.0

1. The house property has already been willed by our father,

2. The beneficiaries of the will shall have to apply or and take probate from the Court otherwise the said will will be treated as invalid,

3. since your father wanted to change the will orally, you all can object to the probate application, if your elder brother files it, and in such case the Court may decide to add your younger brother's name also as one of the equal the beneficiaries of the will,

4. Since, the agricultural land was not willed by your father, all the legal heirs including your mother and sisters will hve equal share on it. 
Krishna Kishore Ganguly
Advocate, Kolkata
18772 Answers
453 Consultations

5.0 on 5.0

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