GOKULDAS KAMATH (EX BANKER) 14 June 2022

Partition deed

I am a Manager in a NBFC .I want clarification on following points Mr.Nataraj has executed a registered partition deed in Dec.2017 which is executed and signed by Father, his 2 wives, 4 daughters from first wife , and one son from second wife , all are majors. As per partition deed Nataraj got 2 immovable properties which includes a property bearing Khata No.384/4 measuring 25000 sq.ft., first wife and second wife both got separate immovable properties, 4 daughters from first wife got Rs.100000 each in cash and son from second wife got 2 properties.The last sentence in the partition deed says if Nataraj and his 2 wives dies, thier share of properties goes to son of second wife Mr.Nataraj died in Feb.2022. The properties came to the share of Nataraj now transferred in the name of son of second wife As per website of Gram Panchayath, the property bearing Khata No.384/4 was transferred in the name of second wife's son in Dec.2020 before Mr.Nataraj died. Son has now divided 384/4 into 4 different sizes out of which 384/4/1 measuring 2000 sq.ft fully constructed area is offered as security for proposed loan with us.There is no mother deed for this property My question is:- Whether the second marriage of Mr.Nataraj is valid when his first wife is alive? Whether first wife's 4 daughters have share in ancestral property in spite of signing above partition deed Whether second wife's son has legal rights over his father's property As the property No.384/4 was transferred to second wife's son before the death of his father which is contradictory to partition deed, whether 4 daughters now can claim share of their properties What are the documents we can take if registered mortgage of 384/4/1 is possible GOKULDAS KAMATH

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Mahi Manchanda 24 June 2022

Hi,

1. Since the Natraj family is hindu, the hindu marriage act will apply. Under the hindu marriage act polygamous relationships are illegal. So, the second marriage would be null and void.

Only if the second marriage is valid, i.e., the husband gets married after the demise of the first wife or after getting divorced from the first wife, then the second wife has the same rights as the first wife over the husband's property. This is valid for both the husband's self-acquired as well as ancestral property.

So, to answer your question, the secon marriage is only valid if Mr. Natraj Legally seperated from his first wife.

2. Coparcenary or ancestral property is the property inherited from one's ancestors since birth. In a landmark judgement in 2020, the Supreme Court has held that daughters will have coparcenary rights on their father's property, even if the latter died before the Hindu Succession (Amendment) Act, 2005, became effective.

The Hindu Succession Act, 1956 was amended in 2005 making the daughter as coparcener in the joint family, having the same rights as those of a son. So all the daughters who were alive on 9th September 2005 would be entitled to a share in the joint property. However, the amendment also provided an exception to this and stated that any disposition of the family property or partition by a registered partition deed or under court order, made before 20th December 2004, will not be disturbed.

Since, Mr Natraj died in 2022, it can be challenged by his duaghters.

3. The child from the marriage would be considered legitimate as per Section 16 of The Hindu Marriage Act, 1956, and they would have right over the property of the father as a class I legal heir if the father dies, as per the scheme of the Hindu Succession Act, 1956. While he is able to inherit his father's property - he cannot act contrary to his late father's will. This can be challenged by the first wife in the court of law.

4. A partition deed might be challenged if there are sufficient grounds. The daughters can move to courts and plead their case.

5. An ancestral property that has been divided through a partition deed or a family arrangement, ceases to be an ancestral property as soon as the arrangement comes into effect.

Documents needed for mortgaging a property

- Application form with a recent photograph

- Proof of Identity (Passport Copy /Voter ID card /Driving License /PAN Card)

- Address Proof (Ration card /Telephone Bill /Electricity Bill /Rental agreement /Passport copy /Bank Passbook or Statement /Driving License)

- Age proof (PAN Card /Passport /any other certificate from a statutory authority)

- Bank Statements (Bank statement /Bank Passbook for the last 6 months) OR Last 6 months salary slips

- Form 16

- Income Tax Returns for the last 3 years

- Processing fee cheque

- Documentation pertaining to the property offered as collateral