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My elder brother trying to grab our joint family property

Shivendra Pratap Singh

Advocate

13/04/2022

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Question: My elder brother is trying to grab our joint family property. He said that the property is a self acquired property of our father. My grandfather had purchased land and built a small house thereon. His family was living in that house. Later on my father constructed seven rooms and a servant quarter. However, my father was not living in that house in his service tenure. We are four siblings. Two brothers and two sisters. Since my elder brother has no source of income, I thought that his livelihood would go smoothly on the rental income.

When I got a job in the Ministry of Railway, I sent money to my elder brother and constructed two additional floors. There are five tenants and annual income coming from rent is about 5.6 lakhs. Now he is saying that my father has transferred the entire house to him by a registered will. I have doubts that the said will is genuine. Sir please help. 

Asked from: Maharashtra

This is a joint family property and your father had no right to transfer the entire house through a testamentary will. Some facts are undisputed and you have evidence to prove it. The facts are:

  • Your grandfather has purchased the land.
  • He built a small house thereon. 
  • His family was residing therein. 
  • Your father constructed the ground floor.
  • You have remitted money in your elder brother’s account for the construction of two additional floors.
  • Your elder brother has only one source of income i.e. rental income. 
  • Elder brother is claiming the entire property because of a testamentary will.

All the above said facts are undisputed. Even your elder brother cannot say that any of those facts is false. He is claiming the right to the entire property because of a will. Now the question is whether your father had the power to transfer the entire house through a will?

The above facts squarely indicate that the house is a joint family property. Your grandfather, father and you have contributed to the building of such a big house. Three separate funds were used. All the family members have enjoyed this property. Hence, it is proved from the facts that the house is the hotchpot of joint family property. 

Also read: Which property is called ancestral property?

Your father was not a sole owner of this property. Hence, he could not execute a will and transfer this property to his elder son. Since it is a joint family property so all the siblings have a joint ownership. This fact renders the will illegal because the testator had no right to make it. 

You should file a declaratory suit and declare your right in this property. You are entitled to get one fourth share in this house. However, you have constructed two additional floors but you cannot claim your title in those floors. You have shown your intention through the conduct that you have brought them in the joint stock of family. Therefore, you cannot claim that it is your separate property.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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