How can the mother do so in this situation?
Querist :
Anonymous
(Querist) 23 August 2011
This query is : Resolved
Dear Experts, A person “X” died leaving behind his one daughter, one son, wife & mother who are the legal heirs of “X”. As per law each will get ¼ share in the property of “X”. The wife of “X” is opposing the claim of mother in court. Wife intention is that the mother will die in few years till then the property should not be mutated in the name of legal heirs. She is not caring of the mother and the mother is staying with her daughter and hence the mother wants to give her share to her daughter. But the said share has not mutated in her name due to stay of court. Please tell how can the mother do so in this situation?
M/s. Y-not legal services
(Expert) 23 August 2011
As per hindu law, the mother of the deceased will comes under class 1 legal heir. So she is entitled to 1/4th share. In this situation the mother can issue a legal notice to other legal heirs. Subsequently she can file a suit for partition.
Advocate Bhartesh goyal
(Expert) 24 August 2011
Yes mother is legally entitled to get 1/4 share of the property belonged to his deceased son.Mother can take legal action against the other legal heirs as advised by MR tom.
R.Ramachandran
(Expert) 24 August 2011
The mother should apply to the Tehasildar concerned by making an application along with the Death Certificate of "X" and obtain a legal heir certificate. She should clearly indicate in the application as to who are all the legal heirs of the deceased "X".
On the basis of the Legal Heir Certificate, she should file a suit for partition of the property.
In the meanwhile, you should also tell us as to on what grounds the wife of X has objected to the mutation? Even if the Court has granted any stay the same can be got vacated by effectively pleading before the Court on behalf of the mother.
Querist :
Anonymous
(Querist) 24 August 2011
Thanks for quick reply, but I want to know if during pendency of suit(which may take Two years or more for decision of partition by court) the mother dies then whether the said property will be divided in three legal heirs of “X”? If so , Then how the mother can give her share to her daughter who is looking after the mother?
R.Ramachandran
(Expert) 24 August 2011
That is why I ask suggest that your mother should file a suit staking her claim. That means even after her death some of her legal representatives can step in and still continue the claim.
In the meanwhile also, an application can be moved against the stay order and stay order can be got vacated successfully.
If that does not happen, then you have to prefer an appeal and you will succeed. Such stay orders which are illegal are nothing but judicial tyranny in this country.
prabhakar singh
(Expert) 24 August 2011
I think you by your query wanted to know"But the said share has not mutated in her name due to stay of court. Please tell how can the mother do so in this situation?"
In my considered opinion ,mutated or not,forthwith after the death of x his property stood devolved up on his heirs named by law as he died intestate.According to jurisprudence Ownership is the seat which can never remain vacant.SO each of the heir presiding over his/her share inherited from x as owner is enjoying his/her right of transfer even pending mutation or any litigation,its sweet
will of one who has to receive the transfer,if agrees to accept a transfer,doing which he/she by operation of law ,will step into the shoes of transferer
with all those rights which the transferer has on the date of TRANSFER.
HENCE IN MY OPINION THERE IS NO BAR ON RIGHT OF TRANSFER OF MOTHER OF X EVEN PENDING MUTATION OR ANY LITIGATION,AND AS SHE IS DESIROUS TO GIVE IT TO HER DAUGHTER LOOKING AFTER HER,SHE CAN TRANSFER IT TO HER DAUGHTER BY A REGISTERED GIFT DEED IF SHE INTENDS TO DIVEST HER OWNERSHIP IN HER LIFE TIME.BUT IT WOULD BE A BIT EXPENSIVE.
THE NEXT COURSE OPEN TO HER IS TO TESTATE A REGISTERED WILL IN FAVOR OF HER DAUGHTER AND TO DISCLOSE THE WILL IN THE VERY LITIGATION GOING ON SO THAT AFTER HER DEATH NO OBJECTION AS TO ITS GENUINENESS ARISES AFTER DEATH,COMPARING A GIFT,IT IS A NO COST WAY TO GO AHEAD TO DEAL THE PROBLEM IN HAND.
Querist :
Anonymous
(Querist) 25 August 2011
Thanks shri Prabhakar Sir,Your answer is the complete and specific reply of my original question. Thanks U a lot. Thanks to the other experts also for sharing their valueable time.
Sachin Bhatia
(Expert) 27 August 2011
Mother is legally entitled to get 1/4 share of the property belonged to his deceased son.
