Block the property from being sold by step mother
Parth Sarathi
(Querist) 29 October 2014
This query is : Resolved
Background -
My parents had separated legally somewhere in 1990,
my father later remarried somewhere in 2000.
He did not have children from this wedlock.
My father expired in April 2014.
Current scenario -
There is no will that he has left behind.
I have no clue of what he has left behind except for a House.
I have NO intentions of troubling my Step mother in terms of getting a share in the wealth my father has left behind.
However my concern is that after Step mother passes away whatever is left behind should not go into wrong hands, expected miscreants are - her sister and her brother in law.
Question -
What legal options do i have to avoid - The property being sold out either by Step mother OR illegal occupancy after her death by her relatives.
P. Venu
(Expert) 30 October 2014
The property is presently vested jointly in the stepmother and the children of the first marriage. The stepmother is competent to transfer her share of the property, during her life time, at her will. However, if she dies intestate, the property which she had inherited from her late husband would vest in his legal heirs and not otherwise.
Devajyoti Barman
(Expert) 30 October 2014
After the death of your father, you and your step mother become half share holder of the property.
If you do jot mutually partition the property then the joint property would not be demarcated and hence she can sell any property during her lifetime.That can hardly be challenged and after her death her share will fall upon her legal heir in which even you can do nothing.
Hence lay claim of your share so you can protect that portion, at least.
V R SHROFF
(Expert) 30 October 2014
Agree with Experts view.
Guest
(Expert) 30 October 2014
Rightly advised.
ajay sethi
(Expert) 30 October 2014
agree with experts
Parth Sarathi
(Querist) 30 October 2014
Thank you for the swift response.
what should i do next to lay claim on the property ?
1> I have death certificate with me
2> The property comes under gram panchayat and not Municipality
P. Venu
(Expert) 30 October 2014
With due apologies to the learned experts, I may be permitted to point out that provisions of Section 15 of Hindu Succession Act applies to the properties of a Hindu female dying intestate:
15. General rules of succession in the case of female Hindus.-
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.
(b) secondly, upon the heirs of the husband.
(c) thirdly, upon the heirs of the father, and
(d) fourthly, upon the heirs of the father, and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father, and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter ) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
Parth Sarathi
(Querist) 30 October 2014
Honestly the info shared by Expert P.Venu was too technical for a lay person like me.
My main concern is - Step mother should not be able to sell / lease / or enter into a legal contract with anyone without a NOC from my side.
There was no will and so far the ownership is not transferred out to step mother.
What should be done from my side to be safe -
Dr J C Vashista
(Expert) 30 October 2014
She can dispose of her share, you cannot stop her, just request her to avoid sale , lease or contract.
Advocate. Arunagiri
(Expert) 30 October 2014
You have right over the properties earned by your father. Your step mother is also having the equal rights.
But, she can not dispose any properties without your consent.
You can obtain injunction from the civil court. By this you can prevent your step mother from disposing the properties without your consent.
malipeddi jaggarao
(Expert) 31 October 2014
If you cannot understand the explanations given by expert Mr.Venu, the simple reply to you is:
You and your stepmother have equal rights in the properties of your father(if you are only the son of your father, otherwise all have the rights, you are silent whether you have siblings i.e., brothers and sisters).
During her lifetime, she can sell, gift away or do whatever she wants with her share of property. You cannot stop it. Your NOC is not required for her to deal with her share of property.
Suppose if the property remains in her name and she dies, then you will become the owner of that share property too.
Do not think since it is property of your father, your step mother needs your NOC in dealing with her portion of share of property.
Hope this is clear to you.
Coming to how to claim your share, you and your step-mother can make a registered partition deed after bifurcated the properties and once the deed is registered, in the records of panchayat you and your step mother enter respective names against the partitioned property, for which you need to submit the death certificate, legal heir certificate and copy of partition deed. This is called mutation.
Parth Sarathi
(Querist) 01 November 2014
Thank you Expert : malipeddi jaggarao - you made it real simple.
A couple of more questions -
1> Would it make a difference if Divorce decree (regarding the first marriage) states that the possession of the children remains with mother, If so does it disqualify the child to have right on father property ?
2> Is it required to pay a certain percentage of the property value when preparing succession certificate, if so how much.
Please note - we don't intend to sell it now.
malipeddi jaggarao
(Expert) 01 November 2014
1. No. Custody of the child with either mother or father is not a disqualification as far the child's rights over property by inheritance.
2. Yes, you will have to file application for succession certificate in a civil court and it attracts stamp duty on the value of property mentioned in the application. The exact stamp duty can be ascertained from your lawyer who files the application.
Dr J C Vashista
(Expert) 02 November 2014
Very well advised by expert Mr. Malipeddi Jaggarao, I agree with him, the child is entitled for his/her share in inheritance irrespective of the custody.
Stamp duty is to be paid in the Court, at the time of passing order on succession petition, as applicable in your state which you may ask your lawyer.
Guest
(Expert) 02 November 2014
The Advise of Advocate Arunagiri Should be your Immediate Choice.
Parth Sarathi
(Querist) 02 November 2014
As suggested by Expert : Advocate. Arunagiri - You can obtain injunction from the civil court -
Would this method involve paying stamp duty or just the normal court fees ?
The reason i ask is - I do not have money to stamp duty, Just want to legally prevent step mother from selling off / transfer ownership of property to someone else.
So if Injunction helps me achieve my goal, for now I want to go for it.
At a later stage i would definitely go for succession certificate.
Guest
(Expert) 02 November 2014
Please Confirm the same with your Court regarding Stampduty,Court Fees etc.You could also get in Touch with some good advocate of your court who could bear the expenses of every thing and collect the same along with his fees after completion.Many Advocates handling Accidental Claims Cases do this.
T. Kalaiselvan, Advocate
(Expert) 02 November 2014
@Author: Succession certificate is not an immediate requirement at this stage. A partition suit with an application for interim injunction restraining your step mother from alienating the property or from encumbering the property in any manner till the disposal suit will take care of the present situation and your property (share) will remain protected and in tact. The court fee for the purpose of this suit will be very minimal (it is standard in Tamilnadu and barest minimum), but the lawyer's fee will depend on the lawyer you would be engaging.
Guest
(Expert) 02 November 2014
You could also get in touch with Advocates of Free Legal Aid Forums but I doubt whether they would take care of Stamp duty and Court Fee.Better Discuss with them.
