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Child's rights in property

Querist : Anonymous (Querist) 11 August 2020 This query is : Resolved 
Hello Respected Sir (s)/ Ma'am,
I have gone through a Divorce which is fully settled with my Ex Wife 4 years back. I have a Son who is around 9 years now and I have agreed for "No Access" as per my Wife's condition during the Settlement. My query is that after he turns 18, does he have any rights in my property? I have 1 flat which is transferred to me from my GrandMother (who is no more) and as I was the nominee. I am the 100% owner of this Flat (Ancestral). Additionally, I have purchased another flat on a joint name (with my Wife now) - this is from mine and her personal funds (through Home Loan). Kindly advice what rights my Son from my first wife have in my assets/ properties and also what can the possible workaround be to avoid any legal issues in the future. I already have made a Will in which it has been documented that I do not wish to give anything to my Ex Wife/ Son from my Ex Wife. I stay in Mumbai and Ex Wife is also in the same city as mine.
kavksatyanarayana (Expert) 11 August 2020
Your 1st property was transferred from your grand-mother is deemed to be own property (not ancestral) and the rest of the property is your self earned. so either your 1st wife or her son cannot ask you. But they can file a petition in a court of law for their maintenance.
Querist : Anonymous (Querist) 11 August 2020
My Ex Wife has already given in writing that she will no longer be claiming for any maintenance. I have already paid her a lot to settle the entire case. She is a working woman.
Isaac Gabriel (Expert) 11 August 2020
If you trust the oral agreement,it is gentle .
Querist : Anonymous (Querist) 11 August 2020
Hello Sir, there is NO ORAL AGREEMENT. This is all document as a part of my Court Orders.
Sudhir Kumar, Advocate (Expert) 12 August 2020
You are mistakne.

divorce has taken place with husband and wife.

divorce never severed the relations of parents and children and wife has on divorce no right whatsoever to compromise the rights of children.

whatever ancestral claim you have can be claimed by your son. He can even claim so thorugh guardian even before he becomes 18.

No WILL can deprive him of his rights to that extent.
Shilesh Patel (Expert) 12 August 2020
Your son can claim your 1st property as maintenance but if your son and ex-wife are financially good then he cannot claim if you have drafted a will.
niranjan (Expert) 12 August 2020
your son cannot claim partition in your self acquired property. so far property coming from your GM cannot be said ancestral property and he cannot claim partition from that property also. Will is rightly made.
Querist : Anonymous (Querist) 12 August 2020
Hello Sir (s), I am getting mixed responses from everyone and this is really confusing now. 1 of you have mentioned that he can claim from my 1st property and someone has mentioned he cant. And I am not clear on how come my grandmothers property cannot be considered as "Ancestral"? That is definitley ancestral as per my understanding. Request for further advice please.
Rajendra K Goyal (Expert) 12 August 2020
You said:
My query is that after he turns 18, does he have any rights in my property?

Reply:

Son of first wife has share in the ancestral property from birth. If you bequeath (Will) / sell / gift / assign / mortgage your share in the self-earned property, no one can object/ no other can claim otherwise. If the action is not in favor of son, he cannot claim.
Rajendra K Goyal (Expert) 12 August 2020
You said:
I have 1 flat which is transferred to me from my GrandMother (who is no more) and as I was the nominee. I am the 100% owner of this Flat (Ancestral).

Reply:

In Hindus Ancestral property is defined as one that is inherited up to four generations of male lineage and should have remained undivided throughout this period.

You have not mentioned how the property was acquired by your grandmother? Whether the property was divided before coming in the hands of late grandmother? If it does not fulfill the above conditions, it is not ancestral property.

You mentioned that you were nominee, hence you are 100% owner of the property.

a) Nominee is only the trustee; nomination does not override the laws of succession in India. Even after nomination the property can be claimed by other legal heirs.

b) Even if the property came to you by nomination, if it fulfills the condition of ancestral property, all legal heirs including son from former wife can claim their share.

c) You could have full share of first property if it is self-acquired property of your grandmother and she gifted / bequeathed it in your favor. Seems conditions were not fulfilled.
Rajendra K Goyal (Expert) 12 August 2020
You said:
Additionally, I have purchased another flat on a joint name (with my Wife now) - this is from mine and her personal funds (through Home Loan). Kindly advice what rights my Son from my first wife have in my assets/ properties and also what can the possible workaround be to avoid any legal issues in the future. I already have made a Will in which it has been documented that I do not wish to give anything to my Ex Wife/ Son from my Ex Wife.

Reply:

You have executed a will. You are owner of 50% (if not otherwise mentioned) share of the said second property, covers by requirements of self-acquired property. Son of first wife or your first wife has no claim over it.


Rajendra K Goyal (Expert) 12 August 2020
You said:
My Ex Wife has already given in writing that she will no longer be claiming for any maintenance. I have already paid her a lot to settle the entire case. She is a working woman.

Reply:

She has no claim, son of your first wife has claim over ancestral / any property left intestate by you.
Rajendra K Goyal (Expert) 12 August 2020
You said:
I am getting mixed responses from everyone and this is really confusing now. 1 of you have mentioned that he can claim from my 1st property and someone has mentioned he cant. And I am not clear on how come my grandmothers property cannot be considered as "Ancestral"? That is definitley ancestral as per my understanding. Request for further advice please

Reply:

In case of confusion, show all documents to local lawyer and discuss.

From the given facts no opinion can be formed whether first property is covered under the definition of ancestral property or not. Legal heirs of your grandmother (if any) have claim / can claim on this property hence endangering your claim on full share.
Querist : Anonymous (Querist) 12 August 2020
Thank you Rajendra ji for this detailed/ crystal clear response. And to clarify, the property of my Grandmother was purchased by her personal funds in Mumbai and this was not gifted/ transferred to her by anyone - this was way back in 1979. Post that she made me the nominee 100% and thats how this flat is now 100% transferred to me. So from what you are saying, this cannot be termed as an "Ancestral" property as it has only passed 2 generations and my Son cannot claim neither this property or any other property purchased from my personal funds. I hope this is the correct understanding.
P. Venu (Expert) 12 August 2020
You have been divorced only from your (first) wife, not the son. And whatever agreement or settlement was made with her, not the son. You are still his father, with all the paternal obligations.

Yes, there could be legal means by which you could prevent your son from any of your properties. But, please retrospect, life is uncertain and future could beholden that instead of the son's deprivation, the proposed myopic steps could turn out to be a greater deprivation for yourself.

This platform is meant for really needy persons who face hassles from the law. But the present query is only seeking suggestion in creating hassles for the 9 year old minor son.

In my considered opinion, any suggestion in response to such unneeded queries is beyond the dignity and integrity of this prestigious platform.
Querist : Anonymous (Querist) 12 August 2020
With all due Respect Mr. P. Venu, I am aware of the facts mentioned by you. However, it is easy to comment and pass a generic comment without knowing any background. You are not aware of the ground reality. So its unfair to ask me not to raise the concern on this platform. I completely trust this platform and have great faith and hence I have posted my issues here. I am aware that legally he is still my Son and I have fulfilled all my obligations already during the settlement and if needed, will do that again in the future. However, knowing my Ex Wife, she is very much capable of unnecessarily creating issues and I DO NOT WANT MY WIFE and Other Child to face any issues in the future and hence, I have reached out onto this Platform.
Dr J C Vashista (Expert) 13 August 2020
Both the properties are your self-acquired, which you are absolute titleholder /owner and capable/entitled to dispose of as you wish.

Your son from divorced wife has a claim if you do not bequeath (execute a will) or dispose it of during your life time, till then he (your son) has no right, interest, claim or title in your properties, despite the fact divorce was granted from your wife but not son born out of this wedlock.

Before attaining majority he (your son) can claim maintenance for himself, which you will have to provide, despite the fact it (contrary) was settled with his mother (your ex-wife).
Rajendra K Goyal (Expert) 13 August 2020
Humbly and respectfully differ with the opinion from senior expert Dr. J.C. Vashishta ji.

First property has come to your name due to nomination, yet right of other legal heirs of your grandmother is not nil due to such arrangement. Nominee is trustee and other legal heirs of your Grand Mother can claim their share in it in absence of will /gift / sale of the property from your grandmother.

Repeat, son from your first wife has no share in both properties if the property does not remain intestate after you.
P. Venu (Expert) 13 August 2020
The author is anonymous. The concept of ancestral property is unique to Hindu personal law. And there too, the property held by women are personal to them, not ancestral.


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