Legal heir after mothers death and father with second wife


Hi,

our mother died recently living behind her immovable property without any will. She has a son and a daughter.

Our father, 80 years old now, married another wife 40 years ago and never lived with our mother. He lives in the same city but at a different house and owns a lot of properties himself (which he always wrote to his second wife name). He also has a daughter from that marriage.

My brother and I are trying to figure out how to transfer my mother's property to our names without involving our father and without his name.

My mother never got divorced or took any legal action against him.

Questions -

how can we get legal heir certificate without our father's name?

where should we apply for legal heir - mother's thaluk or brothers thaluk?

how can we get succession cert without our father's name? Is this possible?

Is it okay to occupy and run the rental business at our mothers property? Or can the father claim it or file a suit against the children? Can he file suit to get rental income?

We can prove he has second wife and child, from their Adhar cards. He is rich and has contacts. So we are worried he can remove us from our mother's property or legaly somehow claim it!

Please let me know what we should be doing to protect the property, run the rental business and for future selling how to transfer it?

 
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Retired employee.

In such complicated issue involving good decisions, though your father is not having any moral right to claim the property, take confidence of a local advocate and legal heir certificate for your mother stating that your father has deserted your mother four decades back and remarried.  All these may be assumptions, Succession certificate is not required for immovable properties.  There may be some facts on documents that go against you, if your mother has mentioned as wife of your father after desertion also.  In the way you can establish on the basis of your step mother's AADHAR CARD, your mother might have mentioned your father name in PAN, AADHAR or Bank account and he may take shelter of those documents.  Always take assistance of professional locally who can read the documents and establish facts of her acquiring the property after such desertion.


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You have not stated how the property was acquired by your Mother. was it self acquired, Gifted by her Parents or Gifted by your Father when they were together.

In any case when you take legal heir certificate, it may not be possible to obtain excluding, who in fact, are lega heirs.  

 
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Occupying the property, you can very well do since you are the Children of the deceased Lady.  In most of the property disputes, 9 out of 10 points are in favour of the person in posession of the property, excepting in the case of tenant who is in posesion.  Therefore, you may occupy the property, if not already living therein. 

 

I feel it is better you obtain a letter of revocation from your father stating that he has no interesting in sharing the property with you.  In any case, please do contact a reliable and competent (he should be both) local Advocate and take his advice and proceed accordingly. The Advocate should not be such that he passes the information immediately to your Father, who you say is already a propertied man.

 
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It was self aquired property, she developed it on her own, father never lived at that address.

 

 
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All great recommendations --

1. Yes, we plan to occupy the property asap.

2. Looks like we have to get all three names on the legal heir. So we will apply online. Do we have to apply at her thaluk or applicants ( one of the legal heir's thaluk) is unclear.

3. Its clear that succession cert is not needed. Ahe has no movable property left behind.

4. One lawyer recommended "Deed relinguish" from my farther and his step daughter. Registered. So we can transfer the property into our names without any ossues and possibily sell in future. True?

5. Finding a reliable lawyer who doesn't "sell" our info to my father's lawyer is really tricky! We so far havent found any reliable lawyer!

 

 

 
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Point 4 your father alone is enough. When the property is your Mother's self acquired property, none from his second marriage related can claim anything.
 
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Point 5 It's tricky but most essential.
 
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Advocate

From the facts stated, your father cannot be excluded from succession. However, the stepmpther or the stepsister has no right in the property. It may not advisable to provoke him as you have a right to inherit the properties belonging to him after his lifetime.

The best course is to obtain the legal heir certificate and based on that, mutation is carried out in the revenue records in the joint names of all the legal heirs without effecting any settlement or partition.

 

 
Reply   
 
advocate/director

you can apply for the legal heir certificate at the concerrned jurisdictional civil courts.

If your mother was a government employee you need to approach the concerned Mandal Revenue Officer for the same.

Solomon RajĀ 
Advocate
High Courts of Andhra & Telangana
Bharat Gaurav Samman Awardee5
Email: justiceleague367@yahoo.com
rajcarey@yahoo.com
phone 9866545086
 
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