• Elder brother denying property share made jointly

Dear Sir, 
My father is youngest among his four brothers. My grandfather expired well before my father's birth. Demise of my grandfather caused mental shock and trauma to my grandmother. 
In hunt of livelihood my 2nd no uncle migrated Mumbai. He started working in  textile printing works. He used to send his earnings to native to eldest uncle to run the family. 
Seeing these pathetic condition of family my 3rd no uncle migrated to Mumbai after 3years and same thing followed by my father. 
They jointly started working in textile printing. After making some money jointly they bought a plot in Mumbai but it was registered under the name of 3rd no uncle. They opened their own printing firm in the same plot. Whatever they generated as income was sent to eldest brother in native. With the money received by eldest brother he registered several other plots in native in all brothers name. 
At once the printing firm for 3years was in the name of my father, the youngest among all. Later it was taken in the name of 3rd no uncle. In evidence we can produce bank statement then. 
Now the plot in Mumbai, registered under name of 3rd brother has accrued large value. Seeing this 3rd no brother is denying share in the plot as it is solely registered in his name. Nobody knew at the time of registration of this cheating. This is immoral and unethical. 
My 2nd no uncle has 3daughters to be married and he can't understand how he will manage. He has always worked for family, and has no savings as everything in Mumbai was given to 3rd no uncle. 
With reference to above please comment on following points. 
1) How to have equal share in plot in Mumbai though registered in 3rd uncles name, but from jointly earned income. 
2)We can produce bank statement of the printing firm in the same plot when my father, youngest of all brothers was having firm in his name later acquired by 3rd no uncle. Irrespective of the firm in whomsoever name, all used to work together as unit. 
3)All the property accrued in native, house in native is not yet partitioned and we have the same house in native. 
4) None of my uncles were married when plot was bought in Mumbai. 
5)Can my father being the youngest, will help him getting the share in the plot. 
6)Plot is given to developer to build residential complex in 50:50ratio and work us isexpected to complete in next one year. We have fear that my uncle will sell all the flats alone when construction gets completed. 

Please guide us as we are left nowhere.
Asked 1 year ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
1. File a suit for partition. In the said suit if you could prove that the property was bought out of common fund of the joint business then the same would be partitioned among the brothers.
2. Those proofs will be invaluable in the partition suit to prove your claim for partition.
3. Bring that property as well in the partition suit.
4. It has no relevance.
5. Yes, he will also get his share if the plot is partitioned.
6. File partition suit immediately and seek injunction so the property/flats may not be transferred till the partition suit is decided.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1) your uncles have to prove that plot was bought 
from Joint family funds 

2) the source of funds for purchase of property is relevant 

3) suit for partition had to be filed to claim share in property 

4) obtain an injunction restraining builder from delivery of flats to your uncle 

5) contact local lawyer 
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
First of all,
1-give legal notice to builder and pen down about ur n ur uncle's share in the property as this is acquired from joint family property .demand all ur people share from him.(be careful with facts same need to be match in future suits if any)

Secondly-
2- der r search clarks in mumbai ,who will give chain of titles in d property -get hire n collect all searches for ur further fight.

3- builder is going to deny ur share hence to save ur money for now n as a pressure tact - file a declaration suit with1000/- court fees in mumbai,declaring ur family share in dat properties.

4- two things will happen
They will come for compromise as property will gt disputed n it will affect builder at the time of sale-whr ur family will gt instant money .
Or
They will fight-
In both the circumstances u can bow them on knees with legal tacts but have patience and persistency to fight.
  
Kshitija Wadatkar Wankhede
Advocate, Greater Mumbai
29 Answers
7 Consultations
Not rated
1) How to have equal share in plot in Mumbai though registered in 3rd uncles name, but from jointly earned income. 
If the property was registered  on your third uncle's name alone, then it becomes his own and absolute property, however, the aggrieved person can file a partition suit based in the evidences of joint earning and joint funding for the purchase of property, though it may not be tenable in law, this pressure may  make the owner  to give away some amount as a consideration to the suffering  family of the other  siblings. 


2)We can produce bank statement of the printing firm in the same plot when my father, youngest of all brothers was having firm in his name later acquired by 3rd no uncle. Irrespective of the firm in whomsoever name, all used to work together as unit. 
I do not know how far this may help you establish the joint family property or earnings, try your luck. 


3)All the property accrued in native, house in native is not yet partitioned and we have the same house in native.
Partition can be sought if they have not been transferred on any individual's name.  




4) None of my uncles were married when plot was bought in Mumbai. 
What rely do  you expect  for  this?




5)Can my father being the youngest, will help him getting the share in the plot. 
Look into the legal provisions  to obtain the share.


6)Plot is given to developer to build residential complex in 50:50ratio and work us isexpected to complete in next one year. We have fear that my uncle will sell all the flats alone when construction gets completed. 
If you apprehend this danger, an injunction suit may also be filed along with the partition suit. 
T Kalaiselvan
Advocate, Vellore
14166 Answers
128 Consultations
5.0 on 5.0
Hello,
1) If the property was purchased with the common fund all brothers must get an equal share in the property although it is registered in uncle No.3.
2) Send a legal notice to your uncle on behalf of your father and uncle No.2 demanding shares in the property or the proceeds. Send a copy of the notice to the developer as well.

3) Of the uncle No.3 is not ready for a settlement you need to move the Court and get a stay against the construction from completing.
The proof of common income of crucial on the decision of the case.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1.Your father and Uncle no.2 shall have to file a declaratory suit praying for declaration that the said property in Mumbai was bought from the joint income of three brothers but was registered in the name of th 3rd brother,

2. If the said property was bought before 1988, your father and 2nd Uncle can claim that the  said property is actually jointly owned  property which was registered in the benam of the 3rd brother,

3. After filing the said declaratory  suit, file a petition praying for stay order under Order 39 Rule 1 & 2 restraining  the 3rd Uncle to carry on the construction till the declaratory suit is disposed of.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. In the said partition suits, there should be a prayer to declare that the properties were bought out of the joint income of all the brothers,

2.It may be difficult for you to prove after such a longtime with documentary evidence that all the brothers paid the money but at the same time it will be difficult for the 3rd brother to prove how has he paid so much of money when his income was much less. At this stage the witness of the land lord and others will be of help to you,

3.& 4. Certified copies of all registered POAs and Agrements can be colleced from the concerned Registration office,

5. No. There is no such law in favour of youngest brother. All the legal heirs will get share of one's property who died intestate,

6. As per the Benami Transaction (Prevention) Act.1888, any registration in favour of one is not considered as registered for and on behalf of others from 1988. So, if it was purchased before 1988, your father and other Uncles  can claim that they had purchased the said property in he name of their 3rd brother who did not pay the consideration,

7. Injunction against construction of the building may  be granted  till the partition suit is disposed of,

8. Documentary evidence superceed all other forms of evidence. However, you shall have to start he case first with whatever documents you have with you. For other documents you can pray for court direction on the concerned authorities to submit the same,

9. Yes and to stop him doing so, you are required to obtain a stay order against his dealing with the property in any way,

10. Visit the concerned Court for 7 days. You will be able to elect your lawyer.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1) you are at liberty to contact any lawyer on this website 

2)if you were able to prove that money was    sent from native place to elder brother for purchase of properties it would show that property was bought in name of elder brother for benefit of joint family 

3)if funds transfers were made in cash there is no paper trail that source of funds for purchase of properties was from joint family 

4) the various documents mentioned by you have to be perused to advise . 

5)you can obtain certified copy of regd agreement from sub registrar office by taking search of the records . 

6)you can obtain injunction restraining uncle from creating third party rights in respect of the properties 
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
1) It was advised to file suit for partition, for the properties both in mumbai and native. Joint family has to be proven for this. For this, there was many properties registered under the name of all the brothers in native by eldest brother after the property taken in mumbai, with the jontly earned income sent to eldest brother. Also we can try putting the family certificate, existing then. No properties/house, bought together in native is partitioned yet. Is this evidences enough to justify HUF/Joint family.

Yes, you are right, the evidences cannot be created afresh now hence you have to rely upon all those which are available now to establish your goal as joint family property partition. 




2) It was also asked to prove that the fund used to accrue the property in mumbai, is a joint family fund. On this part, it may be difficult to get the documentary evidence as every thing was dealt in hard cash, except witness then working together with my uncles. However, before the property was bought my uncles & father had started printing firm in the rented land. The earnings from the same printing firm in the rented land, had a major role in contribution of accruing the self owned plot registered in the name of 3rd no uncle. The owner of the land then, can be taken in confidence to be the witness. Also according to my uncles, agreement of the same rented land was in the name of all the brothers including eldest uncle in native, still the confirmation is needed from land owner if any agreement existed. According to my eldest uncle in native, there was a power of attorney (POA) taken by my 3rd no uncle from eldest uncle who was residing in native, to cancel the agreement with land owner as land owner had to bring residential complex in the same land where printing firm earlier existed. The agreement was of 99 years so NOC was necessary for land owner to bring residential complex, hence POA was taken from eldest uncle by 3rd no uncle.

The evidences in the form of rental agreement, POA and all those witnesses may be helpful to your case to corroborate your pleadings seeking partition from joint family property. 




3) If any agreement existed on the rented land, how will I know, and how can I get the duplicate copy of the same if the Survey no/Hissa no of the land is known. How can I get the copy of POA called by 3rd no uncle by my eldest uncle in context to the same land. which Govt. office deals with this?

You have to sort out this issue through your local source only, the lawyers here cannot suggest you without having access to your personal sources or the prevailing situation at your end. 



4) Can I get the agreement copy of the land which is registered in the name of my 3rd no uncle, but from joint Income of all brothers. What is the procedure?

Yes you can get the certified copy of registered document from the registrar's office.




5) My father is youngest of all brothers. Is there any clause where my father beign youngest, will have the share in elder brother property in a joint family.

Your father is supposed to have a share in the joint family property.



7) If partition suit is filed and Injunction seeking the stay on construction of building is brought, how long the injunction will exist based on the above evidences (approximately, if any).
The injunction will remain in force as long as it is being extended by the plaintiff.



9) Will there be any complications, if 3rd uncle will transfer the property in the name of his spouse/children.

The beneficiaries due to such transfer are to be brought on court records seeking relief against them too.



10) We have made our mind to fight for justice, can any lawyer be suggested from this forum expertise in such areas. What is the procedure?. Can I get the In person appointment, to consult the lawyer of my choice from this forum?.
You choose a lawyer from this forum and seek his/her consent to take up your case, you cannot ask a question this way. 

T Kalaiselvan
Advocate, Vellore
14166 Answers
128 Consultations
5.0 on 5.0
Every agreement need to be registered which transfers rights as per Registration Act, so registered agreements must be available at registry office.

Search clark/advocates will give u readymade certified copy.
For detail clarification on each n every ques u plz contact/visit lawyer. 
Kshitija Wadatkar Wankhede
Advocate, Greater Mumbai
29 Answers
7 Consultations
Not rated

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