Legal Question in Wills and Trusts in India

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FACTS

SUB:- (1).Transfer of Residential Flat to one of the First & Main Beneficiary in the Society Nomination

(Regd) dt. 28-2-2007 AND also First & Main Beneficiary in the WILL (Regd) dt. 19-5-2007.

(2). Getting Letters Of Administration in the name of First & Main Beneficiary (Daughter).

1. A Residential Flat in MUMBAI was sold by some other Party (not by Builder/ Society) and purchased by Father out of his own earnings/savings in 1978 vide Deed of Assignment and Transfer, Jointly in the name of (1).Father and (2).Mother (Housewife). Proof of payment made not available. Share of Property to each not spelt in the Deed. This Old Deed of Assignment and Transfer was subsequently Registered and regularised by paying (out of Father�s Savings) necessary Stamp Duty and Registration Charges under Amnesty Scheme vide Registration No. 5170/2010 dt. 2-6-2010.This disputed One BHK Flat is worth more than 50 lakhs at present.

2. After the death of Mother on 3- 4- 2001, fresh Nomination was made by Father and Registered in the Society on 28-2-2007 (without obtaining any NOC from Daughter and Son) clearly mentioning to Transfer the Shares and interest in the Flat to the first named Nominee � Daughter. Share of each Nominee is clearly stated as (1). Daughter (Elder). 50%. (2). Son (Younger). 50%. Nomination is duly witnessed by 2 persons.

3. Subsequently on 19-5-2007 Father has made a WILL and the same was scanned and Registered in Mumbai on 19-5-2007. This Will was duly witnessed by 2 persons. One more person (who was also one of the witnesses in the Society Nomination) was appointed as the Sole Executer of the Will. In the Will it is clearly mentioned that Daughter and Son shall be the owner of 50 % each Share in Flat. In the Will it is also mentioned that Daughter shall be the Full Owner of his small/petty Pan Bidi Shop in Mumbai. Initially the Will was with Father for some time. As some of his important documents were mysteriously misplaced/not traceable for some time (when he was staying with his Son at Son�s New Residence)), Father had some doubt and hence pressurised and requested the Daughter (though she was not ready to accept initially) to keep the Will with her as he was not at all ready to keep it with anyone else.

4. Son, along with his Family (wife, son and Father) has shifted to the new, more spacious & well-furnished New Flat (in the nearby area) about 5/6 years back. Immediately after shifting Son has renovated & converted the whole old Residential Flat into full-fledged Coaching Class (without the consent of Father) and earning handsome amount there by way of Tuitions.

5. Father has died on 17-2-2012 at Son�s New Residence in the same area. After getting copy of the Will from the Daughter, Son kept on promising for few months to cooperate in getting the Transfer of Flat done and Probate is got at the earliest. After fully agreeing for the Amicable Settlement made by the Elders initially, he has changed his mind and backtracked after reaching home on same day. He kept on threatening Daughter over phone with dirty and abusive talks several times and said that he is not at all going to cooperate but advised Daughter to go to court. Even though Son and his family was staying in their New Flat, they spread false rumours saying that they are permanently residing in the Old Flat (which is not at all suitable to stay as Residence) just to make the public to believe them and with a bad intention in capturing the Disputed Flat illegally.

6. In spite of our sincere efforts, as the Son was not cooperating and not ready to sign Joint Transfer Application, a formal letter was given by the Daughter to the Society on 24-6-2012 enclosing therein ( 1). Copy of Regd. Nomination (2). Copy of Regd. Will. (3). Copy of Death Certificate, thereby requesting to do the needful at the earliest. Son has immediately written to the Society on 2-7-2012 raising objections for transferring 50% Share to Daughter but instead claiming 100% Share and instructed the Society not to Transfer till the Probate is got, which he is intentionally stalling/delaying by influencing the appointed Executor and Witnesses in the WILL. After some time Executor named in the WILL has refused to act and informed his refusal through his letters dated 13-7-2012 and 20-7-2012 and one of the Witnesses seems to have been misinformed and influenced and may become hostile. Son in his letters to the Daughter and Society falsely alleged that the Genuine Regd. Will is Bogus one and also that the Father is not the Sole Owner of the Flat and hence no right to Nominate and make a Will.

7. Original Reg. Nomination, Regd. Will and 2 F.D Receipts (without Nomination) are presently with Daughter but Original Agreement of Old Flat, Share Certificate, SB A/C. Pass Book(without Nomination) etc. are with the Son. Daughter has written to Son to give copies of all the Documents (for filing

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PROBATE) and cooperate for filling up the Bank Forms to settle the amount lying idle in SB and FD accounts since 2012. Son intentionally denies for having any records with him and not ready to cooperate and sign Bank Forms etc. but advices Daughter to go to Court for her 50% Share.

8. In spite of permanently staying in the New Residence, Registered Letters sent to New Residence were intentionally not accepted but returned with remarks �left/not known�. The letters sent to Old Disputed Flat were acknowledged by other/neighbour, just to claim falsely that he and his family are staying permanently there.

9. Sincere efforts of Elders for amicable settlement failed and Son is not at all ready for further talks mainly with bad intention of delaying the Legal formalities thereby earning a lot of income per month by way of Tuition, in spite of regularly earning handsome salary from reputed Public Sector Company.

10. Society through their Advocate vide letter dt. 6-8-2012 advised both of us to apply for Transfer of flat on getting the Probate of Will so as to do the needful in the matter by the Society. In spite of having all the necessary records with him to apply for Probate, Son has not taken any steps all these 3 years, which itself speak/prove his bad intention.

11. Though we have tried our level best to contact the Society Secretary over phone and tried to meet him personally at his residence on 26-8-2012 to get the required details, we were unable to contact him on phone and meet him at his residence. In spite of urgency of matter Society has not replied letters dated 12-8-12 and 22-8-12 and not furnished any of the details/ documents till today as on 25-2-2015.

12. After series of correspondence Son not only stopped replying acknowledged letters but he and his family also completely cut off relations with almost all close relatives (elders & youngsters) from our side. Son and his family not responding to any of the calls and not attending any of the Social Functions of Elders & Youngsters from our side. Instead he has misrepresented the Actual Facts to Society, some of his relatives, neighbours and friends and given a complete wrong impression about the case/subject matter thereby causing lot of embarrassment and spoiling/defaming Daughter and Daughter�s family member�s image/reputation, and instead claiming that he is honest and legally right.

13. Though Son and his family stayed earlier with Father at Father�s disputed residence and Father was forced to stay subsequently at Son�s New Residence (as Father�s old flat was altered and renovated as Coaching Class against his wish), the relation between Father and Son & his Family was not at all cordial. Instead, relation of Father with Daughter was very cordial. While the relation of Daughter with Mother was very cordial, after the marriage of Son the relation of Mother with Son & his family was also not much cordial. In fact, when Mother was alive, Father wanted to Will the entire Property (100%) in Daughter�s name. But it is mainly because of Daughter Father has changed his mind at that time.

14. It is sure that Son is being brain washed/misguided and supported in his misdeeds/illegal acts by his family and Father-In-Law (who is a Senior Advocate in High Court. Bengaluru / Property Matters Expert).

15. Due to the non-cooperation of the Son, unavailability of certain records and mainly due to poor financial condition Daughter has not applied for Letters Of Administration all these 3 years.

16. Under the above circumstances please guide and inform in detail about all the Legal implications and course of action to be taken immediately for early settlement of the case.

Date: - 24 - 02 - 2015 ( Daughter )

1 Answer from Attorneys

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