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Son's right on deceased mother's properties and assets

(Querist) 29 September 2017 This query is : Resolved 
Dear Friends

My mother passed away intestate in February 2014 and was a government employee for more than 30 years. My mother left following immovable and movable assets intestate.

(1) A sum of Gratuity, PPF/GPF, Pension, Leave encashment which is now in possession of my father
(2) A farm house plot which is in joint name with my father where my mother is the primary holder (my father has no monetary involvement at all in buying the said plot. It is solely purchased by my mother’s savings)
(3) A tenement in a prime location which is in her maiden name (though it was purchased 10 years after her marriage) and my late grandfather (mother’s father) financially helped my mother in purchasing the said tenement.

All the problems surfaced when my father suddenly, without intimating us remarried in November, 2016 and forcing my family (me, my wife and my 3 years old daughter) to evacuate “his” house. We’re currently residing in a 3 floor tenement which is in name of my father (but residential plot was offered by government of Gujarat under a scheme at highly commissioned rate and with a condition to wave off my mother’s claim from claiming the plot under government scheme. Only one can be eligible for the plot if both husband and wife are government employees).

I’ve one younger sister who is married and settled in the UK. Now my problems are…..

(1) My father refused to give my share from my deceased mother’s gratuity/GPF/PPF etc.
(2) My father is claiming that the farm house plot is now his since he is the joint owner.
(3) My father illegal transfer my deceased mothers tenement into his name, without informing me or my sister. He also illegal obtained duplicate share certificate from the society. He did all these without any proper legal procedure. Now he’s claiming that the said tenement is also belongs to him and does not allow me to claim my share into the said property.

(4) Is my father entitled to claim his share in any of the above assets since he is remarried and earning that much that lead him luxury lifestyle.

(5) My sister is settled in the UK and does not intention to do any legal procedure against my father nor she’s interested in claiming her share legally. She’s also not giving POA.

(6) My father is misusing all these above, especially cash from gratuity/GPF etc as a tool against me and my family to harass and torture us.

What are my legal options to get my share?

Thank all of you for your valuable time and highly appreciate your guidance.
P. Venu (Expert) 30 September 2017
You can file a suit for partition of the movable and immovable property which belonged to your late mother.
Advocate Bhartesh goyal (Expert) 30 September 2017
Yes,file partition suit also get restrained your father for not to misusing the funds of your mother and transfer the questioned property .
Kumar Doab (Expert) 30 September 2017
1. Who was nominated as Nomine in all the schemes mentioned by you?
Was it your father?
Carefully GO thru
Madras High Court
S.Sandhya vs The Chief General Manager on 9 April, 2012

2. The father is title holder.
Is share of each of Mother, Father mentioned in sale deed?
If No, both hold title upto 50%.

The 50% share of your Mother is open to succession.
Succession has opened on date of death of your Mother.

Rest your contention about money of mother being paid to buy 50% share held by your father is contentious issue.
Looking into your relations (probably strained as guessed from your post) your father may not agree at all.

3. Your mother is sole title holder.
The 100% share of your Mother is open to succession.
Succession has opened on date of death of your Mother.

It is felt that probably your father was nominated in the said property in said society and society has transferred the share to Nominee.

Society may opine that legal heirs can claim from Nominee.
You may obtain all docs from society and examine.
Relate with society bye laws and Model Bye laws of the state and Act and check if the action of society was violative of any bye laws and Act. If yes, you can implead the society.

Rest your contention about money of maternal grandfather being paid to buy 100% title held by your mother is contentious issue.
You are aiming to agitate that the property is acquired from your mother’s Parents side and hence your father is not a legal heir……………. and sons and daughter of your deceased mother are present and hence your father should not get any share from it.
Kumar Doab (Expert) 30 September 2017

Your father can remarry legally after death of your mother.
He is master of his personal life like anyone else e.g; you.
Maybe he is irked by opposition to his decision to remarry and there is ego clash in family and it has become bone of contention of all issues.

He does not need any consent or so from anyone.
You are adult, married.
Father can evict son from property held by him.
Your sister also seems to be adult and probably married. It is her choice to agitate or not and sign POA or not by her sweet will. As your post she is unwilling to be a party in tussle and intervene.

You are aiming to agitate that under the said circumstances the heirs of Mother have interest in the plot and building raised on it.

It is another contentious issue. Discuss in person with a very able senior LOCAL counsel of unshakable repute and integrity specializing in civil matters having successful record in such matters.
Kumar Doab (Expert) 30 September 2017

1. Refer to 1 in previous post.
2. Refer to 2 in previous post.
3. Refer to 3 in previous post.

You and/or your sister do not need anyone to allow claiming any share. If illegal, unfair, fraudulent means have been applied, then you can agitate for such an act.

It is entirely your call, wish, decision to claim and get it on amicable terms by your own skills or with help of elders of family, well wishers, community leaders, etc shrude negotiators that can remain amiable/gentle and successfully arbitrate/conciliate/mediate………………….. and strike a mutually acceptable deal…………………..Local counsels can also try for such settlement…………..

Or if all efforts have failed and facts and merits support you have the option to approach court of law and lean on the skills of your counsels………..

The litigation may bring the warring parties on negotiation table.
Or now also, before litigation, explore if all property can be partitioned on amicable terms and family settlement deed can be signed and registered.
It is felt that your father knows that litigation may initiate and may be protracted, lengthy, and expensive.

On all contentious issues: Discuss in person with a very able senior LOCAL counsel/law firm of unshakable repute and integrity specializing in civil matters having successful record in such matters.
Kumar Doab (Expert) 30 September 2017

Your father can dispose all of his self acquired/earned estate/property in his life time by a valid/registered deed in his life time in anyone’s favor, including a stranger……….

Sons, daughters, wife has NO forced share in his self acquired estate/property.

You have posted that your father has remarried. So it can taken that the marriage is legally valid marriage.

Since he has remarried after death of his 1st wife his 2nd wife is his ClassI legal heir and can succeed to get equal share left indisposed by your father in his life time by a valid deed.

Your father’s children born from his 2nd wife shall also be his ClassI legal heir and can succeed to get equal share left indisposed by your father in his life time by a valid deed.
Vinay Trivedi (Querist) 30 September 2017
Thank you all for your valuable time and guidance. Much appreciated.

Dear Kumarji, Thank you indeed for such precise guidance. Sharing further details of the said matter.

(A) All the original documents of both the property are with me only (Farmhouse plot and Tenement)
=> It is confirmed that my father has illegally transferred my mother tenement (which was in her maiden name)
and obtained duplicate share certificate from the society since original share certificate is with me.

(B) My father is not ready to show any documents related to my deceased mother's Gratuity/GPF/PPF etc. My parents relations were "extremely" strained and i am 100% sure that my deceased mother must have nominated me and my sister in her gratuity/GPF/PPF etc.

(C) Since my father knew that he wont get any share in my deceased mother's tenement (which is in her maiden name), my father illegally transferred the said property.

Please guide so that i can take further steps. Thank you for all the guidance.
Rajendra K Goyal (Expert) 30 September 2017
You have a share in the PF/ Gratuity / PPF and any other deposit of your mother even if your father was nominee. Send legal notice and file case for partition.

In case of property which was in joint name, you have 1/6 th share ( 1/2 of your father, 1/3rd each for you, your sister and your father from 1/2 share of your mother). Can file case of partition.

Your share in the tenanted property is doubtful.
Guest (Expert) 30 September 2017
Mr. Vinay Trivedi,

You may be greatly mistaken. Possession of property papers may not bestow any right to property unless getting legally transferred in your name that too only that part of the share to which you would actually be entitled to as per law, along with your father and sister. Your sister's share cannot go to you automatically unless she legally relinquishes her share in your favour..

So far as the amount of Gratuity/ PPF/ GPF/ Pension or leave encashment is concerned, you can't claim even a single paisa out of the proceeds. You can get that confirmed even from her pension office.

P. Venu (Expert) 30 September 2017
Where was your mother employed? Was she a central Government employee?
Vinay Trivedi (Querist) 30 September 2017
@ P. Venu - She was a state government employee (Gujarat)
Dr J C Vashista (Expert) 01 October 2017
@ Vinay,
You have clubbed various issues in your query, which should have been taken up separately.
Gratuity/ PF/Leave encashment etc. shall be disbursed by the department to the nominee appointed by employee, which is to be confirmed by you from her (your mother's) employer. In case your father was not nominee, file a suit of succession and claim the money paid to unauthorised person (your father).
Intestate immovable property is required to be partitioned by meets and bounds; otherwise through court by filing suit for partition, possession and mesne profits through a local prudent lawyer.
P. Venu (Expert) 01 October 2017
True, the father might have been the nominee in receiving the gratuity/GPF/leave encashment etc. But he receives the benefits only as a trustee on behalf of all the eligible legal heirs. He obliged to divide the amount received as benefits among all the eligible legal heirs.
Guest (Expert) 01 October 2017
I completely differ with the views of Shri P. Venu, where he has supposed a nominee to be merely a trustee, whereas, nobody so far has proved my vital question, as to which section of which law specifies the nominee as merely a trustee for and on behalf of other heirs of the deceased. However, barring any case law, if Shri P. Venu really has access to any of the specific section treating a nominee merely as a trustee, he is welcome to quote here to help enhance my knowledge and to correct me. Any judgment of the case law depends only on the nature, characteristics and circumstances of individual cases on case to case basis. That does not become law unless the main law is affected and amended accordingly.

Further, so far as pension is concerned, I differ with the views of Dr. Vashist also, as for the purpose of pension, no nomination is prescribed. The spouse automatically becomes entitled to family pension on the death of the deceased employee. Only if the spouse has pre-deceased, the eldeest of the minor becomes entitled to family pension. In no case an adult member of the family becomes entitled to family pension. Thus, the querist cannot become share holder in the family pension of his father.

In fact, the querist has the need to make a review of the circumstances, why his father had to decide for 2nd marriage after the death of his mother. Apparently, when in old age, if the sons and daughters misbehave or try to leave the oldy in lurch, he seeks shelter from someone else. So, 2nd marriage of his father must have the reason of mal treatment of his father by him and his father. He should understand well, when he expects to share the wealth of his parents, he also has a liability to maintain his father under the provisions of Maintenance of MWPSC Act 2007.

He should better realise about his responsibilities towards his father, rather than his rights over his properties.

Azhagananth (Expert) 02 October 2017
The Hindu Succession Act,
Section 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 mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.

you are entitled to 1/3 share of the intestate properties of your mother.
Regarding Pension and other monetary benefits of your mother employment - the nominee will get it. in case of no nominee then same 1/3 share..
if your sister is not interested then, she may give release deed of her share and that share will also be divided in to two latter.
so file partition suit including your sister as one of the Defendant(Being Share holder) and after the decree you may adjust according to her wish.

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