Ancestral property
Querist :
Anonymous
(Querist) 11 October 2011
This query is : Resolved
I could not find my earlier query on this site. Therefore, I am submitting my case afresh. There is a property which was purchased by my Aunt (my father's sister). The property was purchased sometimes in1950-60 appx. Before death she handed over the papers of the property to her younger sister. The papers are now either with my elder sister or elder brother. But actual possession is not clear as they are not divulging. it is also not known or is not being divulged as to in whose name the property papers are now i.e.whether the present possessors of the papers are legal owner of papers through WILL OR GIFT OR THEY ARE JUST CARRYING PAPERS WHICH ARE IN THE NAME OF ORIGINAL OWNER(s). WE are eight sisters and brothers. All are aware that the property is going to be disposed off. My elder brother's wife seems to be striving to usurp the major portion of the sale proceeds. 4 brothers and 2 sisters are staying in the said property. I am staying with my in-laws in Delhi (my brother in law i.e. my husband's younger brother-my brother expired in 2001) with my two children (adult).
There are other three relatives who are living in that property and it is been made known that they are also claiming their share in the sale proceeds. Of all the claimants, 3 are unmarried. Kindly advice as to whether I have share in the property. At this juncture I think that I may not be able to provide more information.
Kindly also tell as to what action I have to take. Also if the property is sold clandestinely, what option is open for me/other sufferer. Kindly elaborate. This may please be assinged priority as the property is being disposed of at an early date. (The cost of the property is something around 10 crores.
ESTHERPRIYA
(Expert) 11 October 2011
YOu have to immediate take action and issue a legal notice claiming reasonable partition of the property for your share. Then alone atleast the sale proceeds share can be obtained by you.
Sankaranarayanan
(Expert) 11 October 2011
yes i do agreed with my friend suggestion. better to doubt one lawyer and go through this matter by legal.
Querist :
Anonymous
(Querist) 11 October 2011
Thank you very much Ma'm. But sending legal notice to my elder sister/brother seems to be very harsh. This appears to be unbiblical. Can this matter be resolved otherwise viz., amicably prior to resorting to this extreme/ultimate step? Kidly advice if there is a middle path.
prabhakar singh
(Expert) 11 October 2011
What emerges from your query as a neat fact is only this much that the property ORIGINALLY belonged to SISTER OF YOUR FATHER,AND YOU DO NOT KNOW IF SHE DIED INTESTATE OR LIVING ANY WILL.
BUT YOU HAVE FAILED TO TELL IF SHE WAS MARRIED AND DIED LEAVING HER HUSBAND,SONS AND DAUGHTERS ,MOTHER FATHER OR NOT????
IF ABOVE WERE NOT SURVIVED BY HER,WHO WERE THE RELATIONS LEFT BY HER????????
SO BEING THE CASE YOUR QUERY CAN BE ANSWERED DEPENDING UPON SURMISES ONLY.FOR YOUR GUIDANCE I TAKE YOU TO PROVISIONS OF HINDU SUCCESSION ACT 1956,ON PRESUMPTION THAT YOUR CASE RELATE TO A HINDU.
U/S14 THE PROPERTY IS HER ABSOLUTE AND SHE HAD RIGHT TO TRANSFER IT AND TO PASS IT EVEN BY A TESTAMENTARY DEED ,SAY,WILL.
IF SHE DID NOT LEAVE ANY WILL THEN HER HEIRS SHALL BE ASCERTAINED WITH HELP OF THE PROVISIONS OF THE SAID ACT.
a]U/S 15 IF SISTER OF YOUR FATHER LEFT BEHIND HER SONS AND DAUGHTERS AND HER HUSBAND THEN ALL SHALL EXCLUDE OTHERS AND SHARE THEMSELVES EQUALLY AND SIMULTANEOUSLY.
b] IN CASE NONE OF THEM IS FOUND BUT SHE WAS MARRIED AND THERE ARE HEIRS OF HUSBAND ,THE SAME WOULD BE HER HEIRS TOO.
c]in absence of a]or b]IF HER FATHER AND MOTHER WERE THERE ON HER DEATH THEY GOT IT SIMULTANEOUSLY AND EQUALLY.
D]in absence of a]or b] or c]THE PROPERTY SHALL DEVOLVE UPON HEIRS OF HER FATHER.
e]in absence of a]or b] or c]or d]THE PROPERTY SHALL DEVOLVE UPON HEIRS OF HER MOTHER.
Not sure from query but i guess that she has left heirs to be ascertained under d]ibid.
u/s 8 the heirs of her father would be her father's sons and daughters and/orson of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.
ALL ABOVE WILL GET SIMULTANEOUSLY AND EQUALLY.
NOW YOU ASCERTAIN YOUR SELF FOR WHICH OF THE HEIRS YOUR QUERY IS???????
AS REGARDS TO THE RIGHTS OF HEIRS SO ASCERTAINED IS THAT THEY CAN REQUEST FOR ALLOCATION OF SHARE ORALLY ,NO NOTICE IN WRITING IS LEGALLY REQUIRED THERE FOR, AND ON DENIAL THEY CAN SUE THEIR RIVAL PARTIES
FOR INJUNCTION THAT NO ALIENATION BY ANY MEAN BE MADE OR CHANGE BE BROUGHT IN PROPERTY UNTIL A FINAL PARTITION BETWEEN ALL IS ARRIVED AT.
SUCH A SUIT WILL SERVE THE PURPOSE EVEN IF NO RELIEF FOR PARTITION IS PRAYED.
BUT IN THE CURRENT SCENARIO SUIT OF INJUNCTION HAS BECOME A NECESSITY BECAUSE THEY ARE PLANNING TO DISPOSE THE PROPERTY.
A SUIT OF INJUNCTION SHALL PROVE COST EFFECTIVE ALSO.
BE IT HARSH OR SOFT BUT SUCH A SUIT IS A NECESSITY TO ARRIVE AT THE DESIRED OBJECTIVE.
Querist :
Anonymous
(Querist) 11 October 2011
Thanks Shri P. Singh FOR TAKING SO MUYCH PAIN TO ELABORATE/ADVICE IN DETAIL.. My Aunt who originally purchased this property WAS UNMARRIED. HER SISTER TO WHOM SHE HANDED THE PAPERS OR WILL WAS ALSO UNMARRIED. EVEN MY ELDER SISTER WHO PERHAPS NOW IN POSSESSION OF THESE DOCUMENTS IS ALSO UNMARRIED. WE ARE CHRISTIAN. I AM SORRY I DID NOT FIGURE OUT THIS FACT EARLIER. KINDLY ADVICE ME URGENTLY FURTHER COURSE OF ACTION IN THE PRESENT SCENARIO. ALSO, PLEASE ADVICE WHETHER WE VIZ., SISTERS/BROTHERS WHO ARE BEING KEPT OUT OF THE WHOLE THING CAN FILE SUIT JOINTLY, IF NEED BE.
prabhakar singh
(Expert) 11 October 2011
A sorry sounds very sweet after one unnecessarily takes out the blood. just i have come to know you posted this query some time in past and Mr. Ramachandran attended that first and asked you certain questions but instead of sticking there you have mischievously posted it an other place to waste time and energy of others for no good reason.This is why we are opposed to anonymity.
ANY WAY SUCCESSION OF AN INDIAN CHRISTIAN IS GOVERNED BY INDIAN SUCCESSION ACT 1925
CHAPTER II CONTAINING PROVISION FOR THOSE WHO DIED INTESTATE WITHOUT HAVING LEFT A WILL.
THE LAW RECOGNIZES three types of heirs; the spouse, the lineal descendants, and the kindred. The list of the relatives who fall into the category of "Kindred" is very large and is exhaustively listed in a Schedule which accompanies this Act.
AS is your case, If the deceased has left behind neither a widow, nor any lineal descendants, but only kindred, then, the entire property goes to the kindred.
As amongst the kindred, the father of the deceased has the highest priority. If a deceased has left behind no lineal descendant but only a father and other kindred (such as mother, brother, sister etc.), then, the father succeeds to the entire property (subject of course to the share of the widow, if any).
@@@If there are no lineal descendants or a father, then, the deceased's mother, brothers, and sisters share equally. @@@@
If the deceased has left behind neither a widow, nor any lineal descendants, nor any kindred, then, the entire property lapses to the Government.
WHETHER WE VIZ., SISTERS/BROTHERS WHO ARE BEING KEPT OUT OF THE WHOLE THING CAN FILE SUIT JOINTLY, IF NEED BE.?????
Answer :;
yes that is possible.
prabhakar singh
(Expert) 11 October 2011
For your ready reference the provisions contained in chapter II are reproduced below::
CHAPTER II
Rules in cases of Intestates other than Parsis
31. Chapter not to apply to Parsis.-Nothing in this Chapter shall
apply to Parsis.
32. Devolution of such property.-The property of an intestate
devolves upon the wife or husband, or upon those who are of the
kindred of the deceased, in the order and according to the rules
hereinafter contained in this Chapter.
Explanation.--A widow is not entitled to the provision hereby
made for her if, by a valid contract made before her marriage, she has
been excluded from her distributive share of her husband's estate.
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1 Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".
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33. Where intestate has left widow and lineal descendants, or widow and
kindred only, or widow and no kindred. -Where the intestate
has left a widow--
(a) if he has also left any lineal descendants, one-third of
his property shall belong to his widow, and the
remaining two-thirds shall go to his lineal
descendants, according to the rules hereinafter
contained;
(b) 1*[save as provided by section 33A], if he has left no
lineal descendant, but has left persons who are of
kindred to him, one-half of his property shall belong
to his widow, and the other half shall go to those who
are kindred to him, in the order and according to the
rules hereinafter contained;
(c) if he has left none who are of kindred to him, the whole
of his property shall belong to his widow. Collected by the All India Christian Council, www.christiancouncil.in Page 9 of 123
2*[33A. Special provision where intestate has left widow and no
lineal descendants.-(1) Where the intestate has left a widow but no
lineal descendants and the nett value of his property does not exceed
five thousand rupees, the whole of his property shall belong to the
widow.
(2) Where the nett value of the property exceeds the sum of five
thousand rupees, the widow shall be entitled to five thousand rupees
thereof and shall have a charge upon the whole of such property for
such sum of five thousand rupees, with interest thereon from the date
of the death of the intestate at 4 per cent. per annum until payment.
(3) The provision for the widow made by this section shall be in
addition and without prejudice to her interest and share in the
residue of the estate of such intestate remaining after payment of the
said sum of five thousand rupees with interest as aforesaid, and such
residue shall be distributed in accordance with the provisions of
section 33 as if it were the whole of such intestate's property.
(4) The nett value of the property shall be ascertained by
deducting from the gross value thereof all debts, and all funeral and
administration expenses of the intestate, and all other lawful
liabilities and charges to which the property shall be subject.
(5) This section shall not apply--
(a) to the property of--
(i) any Indian Christian,
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1 Ins. by Act 40 of 1926, s. 2.
2 Ins. by s. 3, ibid.
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(ii) any child or grandchild of any male person
who is or was at the time of his death an Indian
Christian, or
(iii) any person professing the Hindu, Buddhist,
Sikh or Jaina religion the succession to whose property
is, under section 24 of the Special Marriage Act, 1872
(3 of 1872.), regulated by the provisions of this Act;
(b) unless the deceased dies intestate in respect of all his
property.]
34. Where intestate has left no widow, and where he has left no kindred. -Where
the intestate has left no widow, his property shall go
to his lineal descendants or to those who are of kindred to him, not
being lineal descendants, according to the rules hereinafter
contained; and, if he has left none who are of kindred to him, it
shall go to the Government.
35. Rights of widower. -A husband surviving his wife has the same
rights in respect of her property, if she dies intestate, as a widow
has in respect of her husband's property, if he dies intestate.
Distribution where there are lineal descendants Collected by the All India Christian Council, www.christiancouncil.in Page 10 of 123
36. Rules of distribution. -The rules for the distribution of the
intestate's property (after deducting the widow's share, if he has
left a widow) amongst his lineal descendants shall be those contained
in sections 37 to 40.
37. Where intestate has left child or children only. -Where the
intestate has left surviving him a child or children, but no more
remote lineal descendant through a deceased child, the property shall
belong to his surviving child, if there is only one, or shall be
equally divided among all his surviving children.
38. Where intestate has left no child, but grandchild or grandchildren. -Where
the intestate has not left surviving him any
child but has left a grandchild or grandchildren and no more remote
descendant through a deceased grandchild, the property shall belong to
his surviving grandchild if there is one, or shall be equally divided
among all his surviving grandchildren.
Illustrations
(i) A has three children, and no more, John, Mary and Henry. They
all die before the father, John leaving two children, Mary three and
Henry four. Afterwards A dies intestate, leaving those nine
grandchildren and no descendant of any deceased grandchild. Each of his grandchildren
will have one-ninth.
(ii) But if Henry has died, leaving no child, then the whole is
equally divided between the intestate's five grandchildren, the
children of John and Mary.
39. Where intestate has left only great-grandchildren or remoter lineal
descendants. -In like manner the property shall go to the
surviving lineal descendants who are nearest in degree to the
intestate, where they are all in the degree of great-grandchildren to
him, or are all in a more remote degree.
40. Where intestate leaves lineal descendants not all in same degree of
kindred to him, and those through whom the more remote are descended
are dead. -(1) If the intestate has left lineal descendants
who do not all stand in the same degree of kindred to him, and the
persons through whom the more remote are descended from him are dead,
the property shall be divided into such a number of equal shares as
may correspond with the number of the lineal descendants of the
intestate who either stood in the nearest degree of kindred to him at
his decease, or, having been of the like degree of kindred to him,
died before him, leaving lineal descendants who survived him.
(2) One of such shares shall be allotted to each of the lineal
descendants who stood in the nearest degree of kindred to the
intestate at his decease; and one of such shares shall be allotted in
respect of each of such deceased lineal descendants; and the share
allotted in respect of each of such deceased lineal descendants shall
belong to his surviving child or children or more remote lineal Collected by the All India Christian Council, www.christiancouncil.in Page 11 of 123
descendants, as the case may be; such surviving child or children or
more remote lineal descendants always taking the share which his or
their parent or parents would have been entitled to respectively if
such parent or parents had survived the intestate.
Illustrations
(i) A had three children, John, Mary and Henry; John died,
leaving four children, and Mary died, leaving one, and Henry alone
survived the father. On the death of A, intestate, one-third is
allotted to Henry, one-third to John's four children, and the
remaining third to Mary's one child.
(ii) A left no child, but left eight grandchildren, and two
children of a deceased grandchild. The property is divided into nine
parts, one of which is allotted to each grandchild, and the remaining
one-ninth is equally divided between the two great-grandchildren.
(iii) A has three children, John, Mary and Henry; John dies
leaving four children; and one of John's children dies leaving two
children. Mary dies leaving one child. A afterwards dies intestate.
One-third of his property is allotted to Henry, one-third to Mary's
child, and one-third is divided into four parts, one of which is
allotted to each of John's three surviving children, and the remaining
part is equally divided between John's two grandchildren.
(iv) A has two children, and no more, John and Mary. John dies
before his father, leaving his wife pregnant. Then A dies leaving Mary
surviving him, and in due time a child of John is born. A's property
is to be equally divided between Mary and the posthumous child.
Distribution where there are no lineal descendants
41. Rules of distribution where intestate has left no lineal descendants. -Where an
intestate has left no lineal descendants, the
rules for the distribution of his property (after deducting the
widow's share, if he has left a widow) shall be those contained in
sections 42 to 48.
42. Where intestate's father living.-If the intestate's father is
living, he shall succeed to the property.
43. Where intestate's father dead, but his mother, brothers and sisters
living.-If the intestate's father is dead, but the intestate's
mother is living and there are also brothers or sisters of the
intestate living, and there is no child living of any deceased brother
or sister, the mother and each living brother or sister shall succeed
to the property in equal shares.
Illustration
A dies intestate, survived by his mother and two brothers of the
full blood, John and Henry, and a sister Mary, who is the daughter of
his mother but not of his father. The mother takes one-fourth, each
brother takes one-fourth and Mary, the sister of half blood, takes
one-fourth.
44. Where intestate's father dead and his mother, a brother or sister, and Collected by the All India Christian Council, www.christiancouncil.in Page 12 of 123
children of any deceased brother or sister, living. -If the
intestate's father is dead but the intestate's mother is living, and
if any brother or sister and the child or children of any brother or
sister who may have died in the intestate's lifetime are also living,
then the mother and each living brother or sister, and the living
child or children of each deceased brother or sister, shall be
entitled to the property in equal shares, such children (if more than
one) taking in equal shares only the shares which their respective
parents would have taken if living at the intestate's death.
Illustration
A, the intestate, leaves his mother, his brothers John and Henry,
and also one child of a deceased sister, Mary, and two children of
George, a deceased brother of the half blood who was the son of his
father but not of his mother. The mother takes one-fifth, John and
Henry each takes one-fifth, the child of Mary takes one-fifth, and the
two children of George divide the remaining one-fifth equally between
them.
45. Where intestate's father dead and his mother and children of any
deceased brother or sister living. -If the intestate's father is
dead, but the intestate's mother is living, and the brothers and
sisters are all dead, but all or any of them
have left children who survived the intestate, the mother and the
child or children of each deceased brother or sister shall be entitled
to the property in equal shares, such children (if more than one)
taking in equal shares only the shares which their respective parents
would have taken if living at the intestate's death.
Illustration
A, the intestate, leaves no brother or sister but leaves his
mother and one child of a deceased sister, Mary, and two children of a
deceased brother, George. The mother takes one-third, the child of
Mary takes one-third, and the children of George divide the remaining
one-third equally between them.
46. Where intestate's father dead, but his mother living and no brother,
sister, nephew or niece. -If the intestate's father is dead,
but the intestate's mother is living, and there is neither brother,
nor sister, nor child of any brother or sister of the intestate, the
property shall belong to the mother.
47. Where intestate has left neither lineal descendant, nor father, nor
mother. -Where the intestate has left neither lineal
descendant, nor father, nor mother, the property shall be divided
equally between his brothers and sisters and the child or children of
such of them as may have died before him, such children (if more than
one) taking in equal shares only the shares which their respective
parents would have taken if living at the intestate's death.
48. Where intestate has left neither lineal descendant, nor parent, nor
brother, nor sister.-Where the intestate has left neither Collected by the All India Christian Council, www.christiancouncil.in Page 13 of 123
lineal descendant, nor parent, nor brother, nor sister, his property
shall be divided equally among those of his relatives who are in the
nearest degree of kindred to him.
Illustrations
(i) A, the intestate, has left a grandfather, and a grandmother
and no other relative standing in the same or a nearer degree of
kindred to him. They, being in the second degree, will be entitled to
the property in equal shares, exclusive of any uncle or aunt of the
intestate, uncles and aunts being only in the third degree.
(ii) A, the intestate, has left a great-grandfather, or a great-
grandmother, and uncles and aunts, and no other relative standing in
the same or a nearer degree of kindred to him. All of these being in
the third degree will take equal shares.
(iii) A, the intestate, left a great-grandfather, an uncle and a
nephew, but no relative standing in a nearer degree of kindred to him.
All of these being in the third degree will take equal shares.
(iv) Ten children of one brother or sister of the intestate, and
one child of another brother or sister of the intestate, constitute
the class of relatives of the nearest degree of kindred to him. They
will each take one-eleventh of the property.
49. Children's advancements not brought into hotchpot. -Where a
distributive share in the property of a person who has died intestate
is claimed by a child, or any descendant of a child, of such person,
no money or other property which the intestate may, during his life,
have paid, given or settled to, or for the advancement of, the child
by whom or by whose descendant the claim is made shall be taken into
account in estimating such distributive share.
CHAPTER III
prabhakar singh
(Expert) 11 October 2011
YOUR ATTENTION IS ESPECIALLY INVITED TO PROVISIONS CONTAINED IN SECTION 47 [ibid].
BECAUSE YOU AGAIN HAVE NOT SPECIFICALLY TOLD ME ANY THING ABOUT HEIRS BUT I GUESS AT HER DEATH YOUR AUNT WAS NOT SURVIVED BY HER FATHER OR MOTHER,IF MY THIS GUESS IS CORRECT,
THEN 47 IS THE SECTION THAT WILL GOVERN YOU.
IN CASE OF ANY NEED OF TEXT OR SCHEDULE OF THE ACT YOU ARE ADVISED TO VISIT::
indianchristians.in/news/images/.../indian_succession_act_1925.pdf
