Legal Question in Wills and Trusts in India
My father was the sole owner of a flat in Andheri. On the basis of the nomination, after my father's death, my mother had her name on the share certificate. My brother added his name as the second owner of the flat. Probate is pending in the high court. The society as per their letter says they have done as per law. My brother wants to sell off the flat ...Please advice as to what action can I take to stop the sale of the flat.
My mother requested for probate in high court which is pending under adminsitrative suit. The will left by my father was produced by my mother in high court for obtaining probate. In the said will, my father had specified equal distibution of his wealth and gave all rights to my mother.
When contempt of court for creating third party rights/inducting third person in the property my mother introduced one will of later date which gave mother all the rights for the etire property. My father also mentioned equal distribution of wealth between we 2 brothers. The court dismissed the contempt showing lecieny towards my mother and thereafter they introduced a fresh will of later date.
My mother informed the society that the first suit has been vacated and therefore free. She did not mention to the society the admininstrative suit filed by me for the property left by my father.
I was of the opinion that on the basis of nomination my mother has become the owner of the said property but after reading in Times of India the nomination act which specifies that the nominee is merely a trustee and have no right or interest in the property of the decased. I would like to take the matter with the society again and it is more than 8 years that the society had informed by their letter that they have done as per law.
I shall be much obilged if you will advice me the steps to be taken by me to request the society to cancel the name of my brother and mention my mother's name on the share certificate as a nominee.
If I take any action now i.e. after 8 years of the letter of the society, will the court accept my request to direct the soceity to delete the names of my mother and brother from the share certificate
Please advice
1 Answer from Attorneys
It has been held by the Hon'ble Supreme Court of India that a nominee is a trustee to receive property of the deceased on behalf of all the legal heirs and is legally required to apportion the same in accordance with law. The nominee is thus not empowered to apppropriate the property as an absolute owner.
Since the matter is still pending in the High Court, you may file a misc application seeking appropriate direction to the Society. An injunction against your brother may also be sought restraining him from dealing with the property in any manner.
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