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Rahul Ghulatia   16 August 2018

Property issue

Hello all, My father had bought a new site in Bangalore with my money. He dint have money at that time. None of my other sibling came forward to help my father. Now my father wants to transfer that to my son, I.e. his grandson. But now his other daughters are coming in and asking for share. So my question is 1. Do they have legal rights on this property. Because it's not a ancestral property. 2. Now that the site values a lot, If they put a case in court for share, can we appeal against it? What would be the scenario? Any leads shall be helpful. Thanks in advance


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 10 Replies

kirti kabra   16 August 2018

If the property belongs to your father it will fall under ancestral property and your siblings will have the right to claim their share on the same.
But to proceed with the matter in your favour you can ask your father to execute a deed in favour of your name with respect to that property. 

TGK REDDI   16 August 2018

Question 1:    They don't.

Question 2:    Appeal is neither possible nor necessary nor useful.      Apply for summary judgment under Order XIII-A ( 3 ) ( a ) & ( b ).   

Rahul Ghulatia   16 August 2018

Thank you so much Ms. Kirti Kabra & Mr. TGK Reddy. But the property is under my father's name. He took it 10 years back. But I have all the documents which shows I have paid for the property. So if my father writes a will in his grandsons name then there shall be no problem. Is that what you are trying to say?

Kumar Doab (FIN)     16 August 2018

'Buyer Beware' applies to property deals.

It shall be appropriate to get proper legal opinion from a very able LOCAL  CA….and a senior counsel of unshakable repute and integrity specializing in revenue/property/civil/DRT matters and well versed with LOCAL applicable rules/laws and having successful track record…. and worth his/her salt , before signing or making payment.

This may cost some FEE but can defend long term interest and hard earned monies.

 

This applies to situation as in your query also.

Kumar Doab (FIN)     16 August 2018

 

Which personal law applies in your case?

Are you all Hndu?

Have you signed any contract with father while advancing money?

Is IT narrated in sale agreement, sale deed that consideration money is being paid by you?

Do you have any known source of income to advance money to buy the property?

Confirm!

Kumar Doab (FIN)     16 August 2018

 

You have posted that your father did not have money at the time of purchase/did not have any known source of income to buy the property.

How can he substantiate that he bought from white money?

And now your father wants to transfer in the name of your son.

Anyone can read between the lines.

You may go thru;

THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988

THE BENAMI TRANSACTIONS (PROHIBITION) AMENDMENT ACT, 2016; 4(9)

Transfer of Property Act, 1882; 53.

 

Generically speaking; if title holder is your father and has bought the property then IT should be his self acquired property. He can dispose IT in his life time by a valid/registered deed in anyone’s favor withtou any need of any consent from anyone e.g; settlement deed with life rights, gift/sale deed etc and even valid WILL (preferably registered)..

NO one has any forced share in IT in his lifetime.

Kumar Doab (FIN)     16 August 2018

 

 

Succession opens on date of death ; by inheritance or by testamentary succession ( by valid WILL).

In case of Hindu male dying without disposing her estate/property in her life time by a valid/registered deed the 1st right is of ClassI legal heirs i.e Mother (if alive as on date of death), Wife (if alive as on date of death), sons, daughters……

 

In case of deceased Hindu woman dying without disposing her estate/property in her life time by a valid/registered deed ClassI,II is not applicable rather nature and source of property matters.

 

If the property is self acquired/earned/absolute in the hands of Hindu woman the 1st right is of her husband (if alive as on date of death) and sons, daughters…………

If property is acquired from husband side 1st right is of her sons, daughters…………and if sons, daughters are not available then legal heirs of husband..

If property is acquired from parents side 1st right is of her sons, daughters…………and if sons, daughters are not available then legal heirs of father..

 

IT is mandatory to probate the WILL in the areas of Bombay, Calcutta, and Madras.

IT is not mandatory to probate the WILL in other areas. IT is not mandatory to register the WILL.

The WILL should just be valid. Unregistered WILL can be acted upon.

The last valid WILL prevails.

 

The authority under whose jurisdiction property falls has a set procedure for such matters if NO WILL has surfaced; Intestate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Death certificates, legal heir certificate/affidavit (per local procedure-precedence) are basic requirements. Then authority shall act upon and transfer the ownership in the name of legal heirs. Obtain copy of updated mutations records showing share of legal heirs. This grants rights equal to that of owner to legal heirs. All legal heirs are at liberty to relinquish/release/transfer/gift/sell their share in anyone’s favor.

 

The authority under whose jurisdiction property falls has a set procedure for such matters if the WILL has surfaced; Testate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Certified copies of the WILL, death certificate, legal heir certificate/affidavit (per local procedure/precedence) are basic requirements. The authority may ask for NOC from legal heirs (other than beneficiary) and/or to release newspaper advt and/or may write to legal heirs to submit their objections if any within set time.

 

If there is NO contest to the WILL by any legal heir then authority shall act upon the WILL without any cloud on it and transfer the ownership in the name of beneficiary.

If WILL is contested it lands up in probate court of pecuniary jurisdiction. The court shall decide on validity of WILL.

The legal heirs may also consider perspective of registered  family settlement after the WILL and register it.
 

Check locally and comply with procedure. Thereafter concerned official in the O/o Authority e.g; Patwari, shall act upon the matter and transfer the ownership by inheritance/probate in the name of legal heirs in mutations records.

Thereafter obtain copy of updated mutation records.

 

For partition by boundaries either decide amicably (best recourse) or take help of other elders of the family or panchyaat or court of law..

 

If WILL is not submitted to be acted upon then it becomes matter of succession per personal law that applies.

Although it is wrong since the WILL exists.

Check locally to know procedures and to  comply with procedure.

 

 

 

Kumar Doab (FIN)     16 August 2018

 

Usually in such matters, IT is claimed by claimants that estate was bought with funds from undevided ancestral resources……………………..and even that cklaimants had advanced money to buy the property..

If anyone approaches court then one has to substantiate the claim with evidence to the satisfaction of court..

Your father can even dispose the estate by sale and dispose the funds froim the sale..to anyone.

Check with your CA/counsel as already suggested above and act as deemed to you at your end.

TGK REDDI   16 August 2018

No use of the proofs you have with you.       

Your father has the freedom of transferring the property to whomever he likes.

Ashish Gupta   22 August 2018

Court will look into the substance of the transaction. You father has a right to transfer the property as he likes and no other person can make a claim.


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