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What is the legal right of the third child

(Querist) 30 July 2008 This query is : Resolved 
A mother buys and register a property in the name of her two minor children who were prevailing at the time. After few years a third child was born. The mother is no more now. Can the third child claim share from the property?
ESTHERPRIYA (Expert) 30 July 2008
As the two children receives the share of the mother property, they are obligated to maintain and to bear all sorts of expenses for the Third Child.

The claim of the third child is disputable. If the property is one having an ancestral or joint family character then the third child can claim a share in the property. If it has a self acquired character, then it is difficult to claim a share. But both cases the child can claim for maintenance as a right against the elder children.
SANJAY DIXIT (Expert) 30 July 2008
Padmapriya suggested very well & I fully agree.
Srinivas.B.S.S.T (Expert) 31 July 2008
As my friend said and to be more specific the third child can not demand the share in the property as the the property will be of the first tow children as soon as they become majors.
KANDE VENKATESH GUPTA (Expert) 31 July 2008
I am unable to agree with the views expressed my learned friends. The third child is entitled to a share in the property. Admittedly, the mother purchased the property in the name of her minor children. It is not the case of the minor children that the properties are their SELF ACQUIRED property. Admittedly, on the date of the birth of the third child, the family was joint and being managed by the mother as KARTA. The property acquired by the karta of the joint family in the name of any other member of the joint family will be treated as joint family. Hence, the third child can successfully claim a share in the property
Guest (Expert) 31 July 2008
The third child shares the property as elborated by K.V.Gupta. If you are Hindus, Then the share for unborn child is always gaurnteed by the Hindu Law.
arunprakaash.m. (Expert) 31 July 2008
Third child cannot calim over the property purchased by mother for their minors during their minority.
V.Raghavan (Querist) 01 August 2008
Thanks for all my friends responding my query and also for their valuable views. The additional information in the above cases are:-
1) It is an Hindu family and hence Hindu law shall be applicable.
2) The last and third child is now 74 but all the three are alive.
3) The mother had no intention to deprive the rights of her last child.
4) It was not bought on the money of the minors but with the earnings/sale of sridhana properties of the mother(propably jewels).
5) The third child so far not claimed his share since he is adequately settled, but with intention since the property was sold without his consent.

Kindly taking into account of the informations your valuable suggesstions are sought.
puneet (Expert) 01 August 2008
i m aggred with the opinion of mr. gupta
V.Raghavan (Querist) 02 August 2008
what kind of legal action the said third child can take against his brothers?
KamalNayanSaxena (Expert) 03 August 2008
t is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him: nor justify the acceptance of mere conjectures or surmises, as a substitute for proof.

Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances:

The question whether a particular sale is a benami or not, is largely one of fact, following six circumstances can be taken as a guide to determine the nature of the transaction :
(1) The source from which the purchase money came;
(2) The nature and possession of the property, after the purchase;
(3) Motive, if any, for giving the transaction a benami colour;
(4) The position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5) The custody of the title deeds after the sale; and
(6) the conduct of the parties concerned in dealing with the property after the sale.

The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from which the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another.
V.Raghavan (Querist) 09 August 2008
Thanks Mr.Kamal Narayen Saxena. But in my case the source for the purchase is from the mother and the conduct of parties are not good. Hence I understand from your informations that the child has a legal right of the property since the property is understand tobe as an ancestral one,
KamalNayanSaxena (Expert) 10 August 2008
Yes, certainly
Gulshan Tanwar (Expert) 18 July 2010
Gulshan Tanwar (Expert) 23 January 2011
Advocate. Arunagiri (Expert) 23 January 2011
This is not a ancestor property. The mother bought the property and registers in the name of the then two children.

So, the third child born latter can not claim rights over the property.

The two children in whose name the property is registered is not bound to take care of the 3rd child. Even though they have the moral duty to do so.


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