Property of dead husband

advocate

Sir,

My client's Husband is dead intestate and he (the dead husband) has  a property in chennai.  This widow has 2 sons one is of 11 years and the other one is 15 years. There is no income to the family. NOw the widow wants to sell the property. What is the procedure to be followed now.

Will any agreement for sale (stating that the widow will try to get an order from the court that "she will be the guardian and she can sell the property "and take half of the payment from buyer as advance. If she doesnot get such order from court, she will pay the money advanced along with the interest) with the clause stated inside bracket stand?

Whether registration of the property possible before going to court?

PLease answer.

Thank you very much in advance.

 
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Advocate

Dear Shine Mangalore,

 Since your clients husband had died intestate, the property will now devolve upon all the three legal heirs ( widow and two minor sons). The widow can alienate the property on behalf of her sons for legal necessity ( here I assume - educational and everyday expenses for her sons). If the sale deed specifies the legal necessity for which the property is being sold, then the minors will not be able to question the sale on attaining majority.


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advocate

Thank you Vish.

So I believe order from court to effect sale deed is not necessary.

Is it so because she is a natural guardian?

 
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Voluntary Client Attorney Consumer Aribtrator

It'll be registered in her name provided she gives her husband's death certificate to concerned authorities.


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Voluntary Client Attorney Consumer Aribtrator

Vish is correct too.


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Advocate

Dear Shine Mangalore,

As the children are aged 11 and 15 , she becomes the defacto guardian. In  AIR 1992 Mad 214, it has been extensively discussed and it has been held that such  alienation is not void but voidable. But in your case, as the alienation is for the welfare of the children,  such mention in the sale deed will make the sale , legally valid.


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Voluntary Client Attorney Consumer Aribtrator

If she sells, the present minors can't challenge past sale when they attain majority.


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Advocate/ nadeemqureshi1@gmail.com

Dear Shine

if your client is hindu then read hindu Law(Hindu Succession Act)

shedules is clearly mentioned about rights and shares


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advocate

For proper transfer of the property, it is important that permission from court is obtained.

 

If the applicant agrees to deposit the share of the minors in court and upon attaining majority the amounts may be withdrawn with interest, the court will grant the required order.

 
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Voluntary Client Attorney Consumer Aribtrator

The Hindu Succession Act, 1956, is a law that was passed by the parliament of India in 1956 to amend and codify the law relating to intestate or unwilled succession, among Hindus. The Act lays down a uniform and comprehensive system of inheritance and applies to persons governed by both the Mitākṣarā and Dāyabhāgaschools . It is hailed for its consolidation of Hindu laws on succession into one Act. The Hindu woman's limited estate is abolished by the Act. Any property possessed by a Hindu female is to be held by her absolute property and she is given full power to deal with it and dispose it of by will as she likes. The Act was amended in 2005 by the Hindu Succession (Amendment) Act, 2005.

 

Contents

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[edit] Applicability

 

[edit] In the case of males

 

The property of a Hindu male dying intestate, or without a will, would be given first to heirs within Class I. If there are no heirs categorized as Class I, the property will be given to heirs within Class II. If there are no heirs in Class II, the property will given to the deceased’s agnates or relatives through male lineage. If there are no agnates or relatives through the male’s lineage, then the property is given to the cognates, or any relative through the lineage of males or females.

 

There are two classes of heirs that are delineated by the Act. Class I heirs are sons, daughters, widows, mothers, sons of a pre-deceased son, daughters of a pre-deceased son, sons of a pre-deceased daughter, daughters of a pre-deceased daughter, widows of a pre-deceased son, son of a, pre-deceased sons of a predeceased son, daughters of a pre-deceased son of a pre-deceased son, and widows of a pre-deceased son of a predeceased son. If there is more than one widow, multiple surviving sons and daughters, or multiples of any of the other heirs listed above, each shall be granted one share of the deceased’s property. Also if the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother has remarried, she is not entitled to receive the inheritance.

 

Class II heirs are categorized as follows and are given the property of the deceased in the following order:

 

  1. Father
  2. Son's daughter's son
  3. Son's daughter's daughter
  4. Brother
  5. Sister
  6. Daughter's son's son
  7. Daughter's son's daughter
  8. Daughter's daughter's son
  9. Daughter's daughter's daughter
  10. Brother's son
  11. Sister's son
  12. Brother's daughter
 
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