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jaya lakshmi   07 August 2022

Legalheir claims for property once released from sarfaesi act

Me and my husband bought a flat jointly (registered in both our names) and paying the loan emi for past 8 years and still 10 year due is pending. In this case my husband passed away due to COVID ..As we don't have kids me and my mother in law is added as  legal heirs(entitled for 1/4th share). Loan is taken in my name and my husband is co borrower (no insurance for him)but both of us paying back loan from our bank accounts separately. The property was about to go for auction for not paying dues and i recovered from mortgage by  borrowing money from my relative and settled the bank. How can i get the property in clear title as my mother in law refuses to give release deed even if iam ready to pay for her. .Now my mother in law claims the property also she refuses to pay back any loan amount. Wanted to occupy the property and give that to her younger son. What am I supposed to do to get my property with clear title in my name . Kindly advice.
 



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 6 Replies

P. Venu (Advocate)     07 August 2022

To my understanding, the mother in-law has inherited the property with the liabilty proportionate to share. Once you clear the entire liability you may take steps to realise the proportionate share from her. Since the property is a dwelling unit, law does not empower her transfer or otherwise dispose of her share in a manner adversely affecting your possession and occupation.

jaya lakshmi   07 August 2022

Thanks for the reply sir.But i want to sell off the property and settle their share .Is there any solution through court.

P. Venu (Advocate)     08 August 2022

You may file a suit under the provisions of the Partition Act, where by the property could be disposed through the Court adjusting the assets and liabilities of each of the joint-holder.

However, if the property is in the State of Kerala, it would be prudent to avoid any hasty or precipitative action.

jaya lakshmi   11 August 2022

Thanks for the reply sir. Iam from chennai.May i know the reason why you said not to take any precipitative action.

Also I have a doubt whether her share is willable to her second son and family. If so is it not sensible to dispose the property through court and recover my money which I have put in this property without clear title. Because I have paid 90% of the property value with my own money.

Kindly advice sir.Thanks in advance.

P. Venu (Advocate)     12 August 2022

Yes, the mother's share in the predeceased son's could be disposed at her discretion. Since the property is Tamil Nadu, her share in her property, left intestate, would devolve upon her legal heirs. However, thee is a special provision if the property is situated in Kerala. Please see Rule 15 of 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.

(2) Notwithstanding anything contained in sub-section (1),

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

STATE AMENDMENT

Kerala.--

Amendment of section 15.--In the Hindu Succession Act, 1956 (Central Act 30 of 1956), in section 15, after clause (b) of sub-section (2), the following clause shall be inserted, namely:--

"(c)" any property inherited by a female Hindu from her pre-deceased son shall devolve, not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the predeceased son from whom she inherited the property."

[vide Kerala Act 17 of 2016, sec. 2].

jaya lakshmi   13 August 2022

Thanks very much for the time and effort for the reply sir. One last question sir , how will the property be disposed through court(can we take buyer or it will happen through any bidding)

Also wht is the procedure to do this through court. Can you help me with any contacts in chennai.Thanks.


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