• Partition Deed - according to the Will

My father has purchased a property in 1980 during the execution of the sale deed he has included my elder brother   .,who was then a minor , as a joint owner having one half share and subsequently In the year 2004 my elder brother executed a settlement deed conveying his half share to my father and therefore my father is the one absolute owner of the property .

First -One elder brother got married with 10 age old son  
Second -One elder sister no issues at present  
myself is the last and no issues at present .

My father expired in the year 2012 also he has left WILL before his demise.

Fully described the schedule here under .,

Property consists of 3  shops in the ground floor , residential quarters on the first floor and second floor .
1.	 Since my elder brother has been settled with cash by my father to start business also my father has mentioned in the WILL “ my son is excluded from any share in the schedule property “.,
and the settlement deed is also registered ., 

2.	Schedule A for my elder sister 3 shops  rent and second floor residential portion and all the bank  balance all other assets.

3.	Schedule B for myself 1st floor  residential portion .,

Finally my elder sister decided   to do the  partition deed as per WILL . 
At the same while my elder sister wish to give me 1 shop in the ground floor from her schedule A property share .

Shall we proceed partition deed as per the above .,if we proceed partition deed will there be any legal issues or disturbance from my brother or from his son in future .,

Please assist us to move forward as per legal .,
Asked 3 years ago in Property Law from Chennai, Tamil Nadu
Religion: Hindu
Since your elder brother has got no property through the said Will he can dispute it later on.
However since you and your sister is making a partition deed it would be better if you get your brother in the said deed of partition as  confirming party or witness so in future he may not raise any objection.
Devajyoti Barman
Advocate, Kolkata
13167 Answers
175 Consultations

5.0 on 5.0

1. There is no legal requirement to execute a partition deed as the property is to be shared in terms of the will executed by your father. You can directly proceed to mutate the property.

2. Your sister can make a gift deed in your favour in respect of the shop which she is desirous of giving to you. Alternatively, both of you may execute a family settlement.

3. Your brother, who has been excluded by your father, has no right in the property. As a corollary thereto, his heirs can also not claim any share.
Ashish Davessar
Advocate, Jaipur
23169 Answers
641 Consultations

5.0 on 5.0

1) obtain  a  probate of the will 

2) it is judicial proof that will is genuine 

3) since your elder brother executed settlement deed in 2004 conveying his share in property your father was absolute owner and free to bequeath property under the will 

4) your brother can challenge the will if he so desires . 

5) after probate is granted enter into partition deed 
Ajay Sethi
Advocate, Mumbai
46846 Answers
2771 Consultations

5.0 on 5.0

Hi,  you need not necessarily entered the partition deed as the will has come into force from the date of death of your father and your father has divide the property so you just change the katha in your favor as per the will and enjoy the property.

2. As far as 1 shop is concerned it is better your sister will execute gift deed in favor of you so that after transferring the property you can also change the katha in your favor.
Pradeep Bharathipura
Advocate, Bangalore
4561 Answers
204 Consultations

4.5 on 5.0

1) You can get the Will probated in the court so that there will be no issues arising from your brother or his son in the future.

2) As the property is self acquired by your father he is at liberty to will it to anyone of his choice. The only thing your brother will be capable of doing legally is to challenge the Week itself.

3 You can Contest the case on merit of her does so.
S J Mathew
Advocate, Mumbai
2264 Answers
110 Consultations

5.0 on 5.0

Shall we proceed partition deed as per the above .,if we proceed partition deed will there be any legal issues or disturbance from my brother or from his son in future .,
If the Will deed has been accepted and there is no dispute among all the legal heirs, then there is no wrong in getting the property partitioned between themselves by the beneficiaries of the Will. If your sister  wold like to give away one shop in your favor, this can be mentioned in the  schedule of properties  allotted to  you vide the proposed registered partition deed.  
Since the partition deed is  made as per the  bequest made in the Will,  and also there is a mention about the settlement  made in favor of your elder brother  separately, he  has no rights to claim any share  in the present  partition nor his legal heirs will have any right in the future. 
T Kalaiselvan
Advocate, Vellore
36996 Answers
403 Consultations

5.0 on 5.0

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