• My legal right is safe or not

I am Hemangi Saraf. My father is 86 years old. My mother died in 2006.  I have two brothers and one sister. My sister and myself  had taken care of my mother till her death. we were married at that time. My brothers never spend single money for them. From 2003, when my younger brother left  house, I helped my father financially and physically.  My father has small milk distribution business. last year  doctor told them to take rest. After my mother's death in the year 2006 my elder brother came and stay with my father. First two years go smoothly, after this my brother and his wife  started harassing him. They told him to put my brother name second in place of mother's name. The flat is in the name of my father and mother jointly. Now my father nominated his name without taking consent from us. Recently the flat is under re-development process and my brother put his name for the future in the agreement with builder. He never told me about this. Last month my father  fell sick with multiple problems  and hospitalised for 22 days. Doctor told us to keep nurse for them for taking care of him because he is bedridden. so we keep two nurses for him .   Yesterday I read the Times of India, the Supreme Court judgement in Biswa Ranjan Segupta case that nominee is the owner of the flat after the deceased person. In our case my father never nominated any child till 2010. I just want to know that in the year 2012 my father nominated his name as nominee, so my right  as a legal heir is safe or not and under which act we can file a case against my brother who cheated my father and us
Asked 7 months ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
1) nominee is only trustee for legal heir 

2) if your mother was joint owner of flat on her demise you along with your siblings would be the legal heirs of her 50%share in flat 

3) i presume your mother died intestate 

4) apply for letters of administration from Bombay high court regarding mother share in flat 

5) ask your father to execute will regarding his share in flat or to execute gift deed 



Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
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1) your father is not of sound mind as he is suffering from alzmier and dementia 

2) gather evidence about your father illness 

3) his diagnostic report , treatment prescribed by doctors 

4) apply to bombay high court for letters of administration 

5) you can obtain certified copy of property documents from sub registrar office or approach secretary of society . generally one copy is kept in society records 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
Dear Querist
immediately file a partition suit before civil court and claim your share in the property.

nobody can restrain you to get your share legally.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3513 Answers
129 Consultations
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A nominee does not succeed to the exclusion of legal heirs as he is a trustee for all the legal heirs of the deceased person. Be that as it may, if the property is the self acquired property of your parents then your father is at liberty to nominate any one of his legal heirs to the exclusion of other legal heirs in so far as his share in concerned. He is also free to make a will on the same pattern. All the heirs of your mother succeeded equally to his share in the property as she died intestate. You can file a suit for partition to cull out your share in the property. That he is suffering dementia does not render him incompetent to execute a will or make a nomination.
Ashish Davessar
Advocate, Jaipur
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444 Consultations
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Yesterday I read the Times of India, the Supreme Court judgement in Biswa Ranjan Segupta case that nominee is the owner of the flat after the deceased person. In our case my father never nominated any child till 2010. I just want to know that in the year 2012 my father nominated his name as nominee, so my right  as a legal heir is safe or not and under which act we can file a case against my brother who cheated my father and us

It is not understood that what was the subject that you read the topic in Times of India about this.  The law is that the property of the deceased who died intestate shall devolve on their legal heirs equally.
Since your mother was a joint owner of the property, your brother cannot claim her share of property without allocating a share to you and other legal heirs of your mother all by himself.
You have a right to a legitimate share out of your mother's share in the property, you can very well file a partition suit against your brother and also can obtain a stay against the builder to allot the re-developed property to your brother alone.  Just because he is nominee he cannot claim the property for himself, a nominee is just a trust on behalf of the legal heirs to receive the property and disburse them to the legal heirs accordingly. 
T Kalaiselvan
Advocate, Vellore
13883 Answers
127 Consultations
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My mother died intestate. My father has Dementia and Alzmier  problem from last two three years and now he is bed ridden and not in a position to understand this. All the property papers are with my brother and he is  not ready to give. We are helpless. If my father sign any paper in this Dementia problem ,  is valid or invalid according to law. .

As far as your mother's share of property is concerned you can file a partition suit and for your father's health condition, by producing his medical documents you can file a court guardian for your father to take care of your father's properties during his ill-health condition. This will be the solution to stop your brother from alienating the property without your knowledge.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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if you have evidence to prove that your brother has been reluctant to take care of his father and he wants to caprure all the properties of my father. then you should file a representation suit before the district court on the ground that whether my brother has prepared any will or other documents with a view to taking possession over the land. 
then your brother will be bound to appear in the court and represents his stand. if he admits that he made such documents then you should file a suit for its cancellation on the ground of fraud, deceit and undue influence.
Shivendra Pratap Singh
Advocate, Lucknow
2693 Answers
41 Consultations
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