• Will the first floor also get the share of the land.

My father has written a will for a two floor building in which he has given ground floor to my brother and top floor to me.. He has not mentioned the division of land or roof in the will. My brother thinks that he gets full value of land since he gets the ground floor. I think the land value should also be divided equally.
 What is the leagal position?
Asked 7 months ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1) both the brothers would be joint owners of land 

2) roof forms part of common area for be fit of both the brothers 

3) your brother would not be sole owner of land 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
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1) Your brother has only life interest in the house and has no owners to sell his share in property 

2) you cannot sell the house to the builder 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
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Without seeing the contents of the Will it will be very difficult to advise on this.
If the proeprty is self acquired property of your father he can make a Will. Else the property would be equally divided among all his legal heirs.
The property not mentioned in the Will like the land of the building would be equally divided among all his legal heirs.
If all legal heirs so want they can give the proeprty to the builder provided all of then sign the development agreement.
Devajyoti Barman
Advocate, Kolkata
5226 Answers
54 Consultations
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1.In the instant case even though the 'WILL' does not clearly defined the undivided land, including the terrace portion, apart from common areas, it is deemed to be divided b/w the 2 brothers in the ratio of 50% each.
2. Both the brothers can enter into a Joint Venture Development Agreement with a Developer for construction of Apartments on the property and your father's particular clause in the 'WILL' in respect of not permitting your brother to sell the property is not affected by this, if your brother's children's (nephews)concurrence is obtained (if they have attained the age of majority).
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
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Hi, As per law both of you has undivided 50% share in the property. your brother can't say you have only right in the first floor of the property.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
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Land is a common space. One cannot claim inheritance to the common spaces in the absence of a specific clause to this effect in the will. It is common to all the owners of the property.  It ought to be a common property with common access.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
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Without a perusal of the will nothing can be said but it seems that only a life interest has been created in favour of your brother. Unless the will is perused I cannot tell whether it can be given to a developer for redevelopment without the permission of court or not.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
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you can give this property for construction of apartment because your father imposed condition regarding disposal of this property is void under section 114 of the Indian succession act against the rule of perpetuity 
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
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My father has written a will for a two floor building in which he has given ground floor to my brother and top floor to me.. He has not mentioned the division of land or roof in the will. My brother thinks that he gets full value of land since he gets the ground floor. I think the land value should also be divided equally.
 What is the leagal position?

You have not mentioned that whether the Will came into force of not, if it has not come into force, you may ask your father to re-write the will or the testamentary disposition to suit the prevailing circumstances and equal distribution.  However, if the will has come into force, and the doubt raised in your mind is totally a silent chapter in the will, it can be construed that both have equal rights in the ground value as well as roof rights..  
T Kalaiselvan
Advocate, Vellore
14057 Answers
127 Consultations
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My father has also mentioned that my brother can live in the property but only his children will be able to dispose it . Can we both decide to give to a developer for converting the property in to apartments?

If the testamentary disposition involves minor children interest, then you may have to be very careful while deciding to dispose or transact with such properties. 
Even if it is mutual agreement, the minor children should not be hampered, accordingly the events should be managed that the minor children get their due share when they become major by age.  
T Kalaiselvan
Advocate, Vellore
14057 Answers
127 Consultations
5.0 on 5.0

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