Rajendra Kumar 14 September 2023

Nature of property and it's devolution on legal heirs

Sir, my father Head of joint hindu family who owned property( a) and (b) details below died without will, leaving behind his 5 legal surviving heirs, his wife, 3sons (married) , 1daughter(married) in 2013.

Property (a) Ancestral acquired from his father vide unregistred family settelment and subsequently by decleration suite among his father and brothers.

(b) self purchased

Question 1- Nature of properties(undivided) left behind by my father in absence of will , with regards to his legal heirs

Question 2- if it is understood a notational partition has occurred due to operation of law, declearing undivided 1/5 th share property for every legal heirs, then what will be the character of such 1/5 th undivided share of these 5 legal heirs with regards of their heirs.

Question 3- can any legal heir trasfer his/her 1/5th undivided such share vide gift, will, sale to any legal heir or anyone without getting (seperating with due demecration) partition of his share vide a legally valid procedure.

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3 Replies

T. Kalaiselvan, Advocate (Advocate) 15 September 2023

The irst item is no more an ancestral property since the same was partitioned among the legal heirs of the deceased property owner, hence it becomes your father's self acquired property.

The second item was purhased by your father hence it is also coming under self acquired category only.

Thus the properties left behind by your deceased father upon his intestate death shall devolve equally among his legal heirs consisting his wife and children (provided you are a Hindu by religion).

Now since all the 5 legal eirs are entitled to one fifth share in the property, if any one of the legal heirs is willing to give away his or her share to the chosen shareholder, then he or she can execute a registered gift settlement deed in favor of the chosen shareholder.

If the said shareholder chooses to relinquish his/her rights over the share of the property,then his/her share of property shall devolve equally among the remaining shareholders.

Real Soul.... (LEGAL) 15 September 2023

It is better to partition the property first and let each share holder get its respective share. The whole property belonging to your father shall be divided in five parts.Any shareholder who does want share fom the property can relinquish it by a seperate relinquishment deed .

Rajendra Kumar 15 September 2023

R/sirs, Tnx for your views but my points of concern not cleared. Point a) - there have been remark of various high courts and supreme court saying that an ancestral property doesn't loses it's character due to a partition has taken place. if it is not so then wouldn't be against the law where a coparcenar has a equal right with other coparcenar up to 3 level in the coparcenary property how a coparcenar may be deprive from his right.

2) - the nature of such1/5 th undivided property share inherited by the legal heirs of deceased with regards to their legel heirs. If I inherit this 1/5 th share what will be the nature of this for my children. Coparcenar Or self acquired.

3) - in case of transfer of such undivided 1/5 th share that only quantify right but not identify which property or which portion of property belongs to whom and it is not against the law of transfer of property act which says as I understand for a valid transfer of immovable property one should have a property with clear title with existance and possession. Please clarify.