Family settlement

Dear Mr. Pankaj Jain,

The best course for your query will be to make a Family Arrangment, with the consent of all members of the family, and get it registered.

Good Luck,

Kishor Mehta

Instead of going fot the purchase, go for regd., rights relinquish deded of the portion which you want to take, it miniise your charges.

Dear Mr Rajeev,

Your reply is not clear to me, can you please elaborate that you are trying to suggest.

Regards,

Pankaj Jain.

Dear Mr Mehta,

In case you are based in Delhi NCR, can you please share your contact details so that I can met and discuss with you. Moreover I have one doubt here, in case both Family Arrangement and Will are there and both are registered, which will get precedence. There may be a scenario that what is written in Family Arrangement can be contradicted by will, as will can be changed at any point of time. Is family arrangement ir-revocable and full proof for the solution I am looking for.

Regards,

Pankaj Jain.

Dear Mr. Pankaj Jain,

[1]  Will can be made only for the properties that are owned by a person. A Will can be revoked any time, even if it is registered.

[2] A Family Arrangement/Settlement has to be made with the consent of all the concerned family members, and has to be signed by each member of the family effected by it. It has then to be notarised and registered to make it irrevocable.

I believe this satisfies your queries,

Good Luck,

Kishor Mehta

Dear Mr Mehta,

Thanks a lot for your responses.

I need a lawyer who can get it done for me, in case you are based in Delhi/NCR, may be you can help me. My contact number is 9818542619. In case it is possible for you to get it done for me, may be we can proceed further, it has to be executed in GHAZIABAD, or may be you can suggest me some lawyer. Please do send me your details so that I can contact you, even if you are not based in NCR.

Your above reply raised a few more queries:

Properties will always be in name of some person, group of person (here I am not taking into consideration corporate cases) so in such a case owner can always mention that property in his or her will. Now the same property can also be a part of family settlement. So is it not possible that for the same property something is written in will and something is also written in family settlement.

In case it is possible, in such a scenario

a) Does both documents get null and void?

b) Does if both are present only one will be considered and other will be considered null and void, for example what is mentioned in Family Agreement will be considered and written in Will becomes null and void atleast w.r.t. that property, irrespective of the dates when they were executed.

c) Does deed/Document which was executed later will be valid and other is void.

As I am a common man and do not have any knowledge of CPC or law these questions have come to my mind. Please do let me know in case you have made any assumptions like HUF or anything else.

Regards,

Pankaj Jain.

Dear Mr. Pankaj Jain,

I am based at Mumbai,  I am a senior citizen and legal jurisprudence is my hobby. I do not have any acquaintance in your area.

About your queries:

"Properties will always be in name of some person, group of person......so in such a case owner can always mention that property in his or her will. Now the same property can also be a part of family settlement. So is it not possible that for the same property something is written in will and something is also written in family settlement."

Whenever a property is partly owned the relative documents of the property will show the percentage of the property owned by a person and that person can bequeath, either by a Will or a Family arrangment/settlement, only that part of the property that legally belongs to him. The other part owners can make a Will or Family arrangment/settlement for the parts owned by them respectively.

Thus the bequethal, either by a Will or a Family arrangment/settlement, is legal for all the joint owners of the same property, provided the shares in the joint property is specifically and legally partitioned.

I believe this satisfies your queries.

Good Luck,

Kishor Mehta

Dear Mr Mehta,

Thanks a lot for your reply.

I got a little confused by your reply, because in my case 2 properties are involved, lest say PROP1 and my father is the sole owner of that property (he gets this property from my grandfather thru will) and PROP2 of which I and my wife are the joint owner of this property. PROP2 registry has been done only 2 days back and in that registry no where it is written that how much % belongs to me and how much % belongs to my wife.

Now as per your suggestion we can make a family settlement deed in which it will be written that after the death of my parents PROP1 will be transferred to me and on the same day PROP2 will be transferred in the name of my brother. In this deed I, my wife, my sister, my brother, my mother and my father shall sign it in presence of the registrar and it makes it ir-revocable. Also somehow this family settlement deed makes sure that PROP1 cannot be mentioned in any WILL written by either my father or my mother.

Please confirm if my above understanding is correct?

Whenever it happens no registration charges need to be paid for PROP1 as it will be a case of transfer of parental property, whereas complete registration charges shall be paid for PROP2 as it will be transferred from my and wfie name to my brothers name.

Moreover today I was able to have a discussion with a lawyer here and he told me that thru a family settlement deed, an arrangement that who will live in which property can be made but thru family settlement deed titles of the property cannot be transferred. He wanted to say that if in family settlement deed we write that after the death of my parent PROP1 will be transferred to me then legally it is not valid and it can only be done thru either a WILL, Declaration suit or GPA.

This version of the lawyer is again confusing me. Can you please share your thoughts on this. I am not sure if this varies from one state to other.

Waiting for your reply.

Regards,

Pankaj Jain.

Dear Mr. Pankaj Jain,

[1] "no where it is written that how much % belongs to me and how much % belongs to my wife."

When no percentage is mentioned in a Registered Document it is assumed that all the parties in the Document are equal owners/partners.

[2] "Also somehow this family settlement deed makes sure that PROP1 cannot be mentioned in any WILL written by either my father or my mother."    

No family arrangments or settlements can take away the right of a person to make a Will of his rightful properties.

[3] "no registration charges need to be paid for PROP1 as it will be a case of transfer of parental property,"

Probate of a Will from the Court is essential for the ownership of a property through the Will.

[4] "thru a family settlement deed, an arrangement that who will live in which property can be made but thru family settlement deed titles of the property cannot be transferred."

Family arragement/settlement is an arrangement arrived at between the members of a family for the sole purpose of clear understanding about future distribution of the properties so that disputes may not arise, it can not transfer or bestow any rights of property on any person. Conveyance is the only instrument that transfers the right, title and interest from one person/s to another person/s.

[5] "PROP1 will be transferred to me then legally it is not valid and it can only be done thru either a WILL"

This property can safely be transferred through a Will and subsequent Probate of the Will.

The laws of Will are identical in India.

Good Luck

Kishor Mehta

Dear Mr Mehta,

Thnaks for your reply.

To one of the reply you have mentioned above:

Family arragement/settlement is an arrangement arrived at between the members of a family for the sole purpose of clear understanding about future distribution of the properties so that disputes may not arise, it can not transfer or bestow any rights of property on any person. Conveyance is the only instrument that transfers the right, title and interest from one person/s to another person/s.

and also you have mentioned:

A Family Arrangement/Settlement has to be made with the consent of all the concerned family members, and has to be signed by each member of the family effected by it. It has then to be notarised and registered to make it irrevocable.

So in all I understand that family settlement deed is some how a solution to what we are looking for; as it is irrevocable. Are there any chances/possibility that at a later stage one of tha party involved in this settlement refuses to abide by what is written in family settlement deed. In case yes; what can be done at that point of time.

Also I think that in order to make it more authenticate, along with the family settlement deed, we shall also go for the following deed/documents:

1) A WILL by my father, mentioning that PROP1 shall belongs to me or my natural successor after his death. I think it will work as a conveyance so that PROP1 will come in my name.

2) Also one WILL shall be written by me and by my wife that PROP2 shall go to my brother in event of our death but only after the execution of point1.

3) Shall a will; be also executed by my brother that in case of his death all the rights to property regarding PROP1 (for which he will be entitled only after the death of my father) shall be transferred to me, rather than his natural successor. Can he make such a will because as on date legally he do not have any part of property in his name.

Or do you think that point 2 and 3 are not required as it is by default covered by family settlement deed.

One more thing, when a parental property comes into picture as in my case PROP1, which was transferred to my father by my grandfather, does my father holds the right that he can bar one or more of his natural successors (son/daughet/wife) from this property

or

As it was a parental property, my father do not holds this right and legally it has to be distributed equally among my father's natural successors, because if this is TRUE then point 1 above do not holds good, which will eventually mean If at all PROP1 has to be transferred to only one successor, consent of all other natural successors are mandatory.

Regards,

Pankaj Jain.

Dear Mr. Pankaj Jain,

1] "Are there any chances/possibility that at a later stage one of tha party involved in this settlement refuses to abide by what is written in family settlement deed."

No participant member of a family arrangment/settlement can refuse to abide by his commitment entered in to at the said commitment if the family arrangment/settlement is duly executed, notarized and registered. Unless an intentional  malafide fraud is proved.

2] "A WILL by my father, mentioning that PROP1 shall belongs to me or my natural successor after his death. I think it will work as a conveyance so that PROP1 will come in my name."

A  Will comes in to force only on the death of the testator, A Will is not a conveyance, a probate from Court has to be taken for a Will.

3] "Also one WILL shall be written by me and by my wife that PROP2 shall go to my brother in event of our death but only after the execution of point1."

A  Will comes in to force only on the death of the testator, how can one predict who will predecease. If your father outlives you what happens to his property?, and what happens to your property? 

4] "Shall a will; be also executed by my brother that in case of his death all the rights to property regarding PROP1 (for which he will be entitled only after the death of my father) shall be transferred to me, rather than his natural successor. Can he make such a will because as on date legally he do not have any part of property in his name."

Your brother can not Will a property that does not belong to him in the first place.

5] "One more thing, when a parental property comes into picture as in my case PROP1, which was transferred to my father by my grandfather, does my father holds the right that he can bar one or more of his natural successors (son/daughet/wife) from this property

or

As it was a parental property, my father do not holds this right and legally it has to be distributed equally among my father's natural successors, because if this is TRUE then point 1 above do not holds good, which will eventually mean If at all PROP1 has to be transferred to only one successor, consent of all other natural successors are mandatory."

If the property has been inherited by your father by virtue of a Will of your grandfather, then he can make a Will according to his wishes, however if the property has come to your father, your grandfather having demised intestate, then it is an ancestral property in the hands of your father and all the children of your father are equally entitiled to a share in the ancestral property.

I think it will be helpful if you try to place all the material facts instead of posing queries, it will help towards offering logical solution.

Good Luck,

Kishor Mehta