Rights of co-owner


My father bought a property in a cooperative housing society in from money obtained from proceeds of the surrender of a joint tenancy he had with my mother.
 
While the Conveyence Deed names only the seller and my father, the actual source of the money is stated above.  My mother was made joint-allotee of the property at the express written request of my father to the Society Management.

My father died intestate and has left 1 son (myself) and 1 daughter. My sister and I are NOT mentioned as nominees for the property. This was because my father desired the property go solely to my mother and she feel safe should anything happen to him, and dispense with it in any way she desires.  This feeling was prompted by the recent trends by children to turn their old parents out of their own homes and onto the streets.
 
Now, we need to do some regularization and I would be most grateful for your advise.  Specifically, could some expert  please tell me which of the following are true with regards to Hindu succession
 

a. My mother is sole owner of the property since she was made joint-allottee by my father
 

b. My mother retains a 50% share of the property since she was joint-allottee when my father died, and my mother, sister and I (i.e. all my father's legal heirs) share the remaining 50% share of equally. This gives my mother a 66.66 % share, and my sister and I each get a 16.66% share of the property.
 

c.  My mother retains a 50% share of the property since she was joint-allottee when my father died, and my sister and I share the remaining 50% share of equally. This gives my mother a 50  % share, and my sister and I each get a 25 % share of the property.
 

d. The entire property is divided equally between my mother, sister, and I.
 

Thanks for your time!

 
Reply   
 
ha21@rediffmail.com Mumbai : 9820174108

1.  The rightful owner is the one whose name is registered in the deed  AND FROM WHOSE ACCOUNT THE MONEY FOR THE DEED IS DEBITED.    No other person has any right on such property,  even if nominated or joined or whatever,  after the deed is registered. 

 

2.  The ultimate source of money for the Deal, is immaterial,  IF IT IS NOT RECORDED,  DOCUMENTED AND PROVED.   Oral understandings or oral agreement,  pertaining to source of money, specifically for the deal,   is always highly doubtful and usually non-provable and highly contradictable,  and hence have no legal significance in law.

 

3.  Hence by the above logic, due to no-dispute reasons AND due to  "intestate reasons",   the following should be rightly executed, as rightly understood by you.

    "d. The entire property is divided equally between my mother, sister, and I."

 

4.  OF COURSE,  there are other ways of managing such issues, looking at future perspectives.

 

Keep Smiling .... Hemant Agarwal

 
Reply   
 


Legal Consultant / Solicitor

Hemant sir is right

 
Reply   
 
Legal Manager

Dear chandra

 

I have to inform you that your mother is the full and absolute owner of the property. 

Reason:  The law of co-ownership says that if one co-owner dies the entire property devolves upon the other co-owner and even the legal heirs of the deceased co-owner cannot claim rights on the property.

The facts of your case squarely falls under the fundamental rule of co-ownership stated above and as such your mother is the absolute and full owner of the property after the death of your father and none of you (all children) have no right on it.  (Please note that in view of the above legal point your assumption of mother's share being 50% is not correct)

 
Reply   
 
ha21@rediffmail.com Mumbai : 9820174108

Originally posted by :R.R. KRISHNAA

"



Reason:  The law of co-ownership says that if one co-owner dies the entire property devolves upon the other co-owner and even the legal heirs of the deceased co-owner cannot claim rights on the property.
 

"

The above statement is contrary to the guarantees available to the legal heirs,  under the Hindu Succession Act.  Hence the above statement cannot be true.

 

Keep Smiling .... Hemant Agarwal 


Total likes : 1 times

 
Reply   
 
Legal Manager

Though appearing to be contrary, the legal position cannot be disputed/denied.

 

The rights guaranteed under the Hindu Succession Act cannot run contrary  to the laws relating to ownership (joint owners/co-owners) envisaged under the Transfer of Property Act. 

 


Total likes : 1 times

 
Reply   
 

Dear Mr. Krishnaa,

Your arguments, though shocking, have some analogies to the recent judgement by the Bombay HC:

http://www.taxguru.in/corporate-law/nominee-not-heir-to-get-shares-after-holders-death-hc.html

 

where, a nominee (who barely makes it to the Class 2 level in Hindu succession) has rights greater than a Class 1 successor. 

Chandra

 
Reply   
 
Legal Manager

Dear chandra

 

Don't get shocked.  I merely stated my legal opinion.  The right legal position may be even otherwise or as stated by my learned friend Mr. Hemant.

 

But I dont find any analogies in the link shown by you to.

 
Reply   
 

The analogies are that in both your arguments and the Bombay HC ruling run contrary to the Hindu Succession Act.  Hemant, your inputs here would be invaluable.

 
Reply   
 
ha21@rediffmail.com Mumbai : 9820174108

That HC judgement pertains to  "movable" property (stock security held in demat a/c)   and  nowhere the judgement says that Nomination under Demat rules will over-ride the HSAct.   

 

Under the H.S.Act, the legal heir may always challenge the nominee and claim his legal heirarcy via a procedure called as a Succession Certificate.

 

Nomination can be made favouring anybody,  it may be  your neighbour,  your local politician, the local leper beggar or anybody.  There is no restrictions.   But do the nominees derive the right to the estate of the deceased  = A BIG NO.

 

Would the Nomination facilities under the various Acts  over-ride the provisions of the Hindu Succession Act =  A BIG NO.

 

Would the anscestral  properties be allowed to be succeded via a nomination to the  lone-one-legged beggar outside the mandir = A BIG NO.

 

IF AT ALL the above answers were to be in  YES, ...  THEN  there would have been no need for a "WILL",  nor the need for execution & administration of the will,  nor the need for the will to be probated, since a 4 decade old nomination paper would be sufficient enough to truncate out the legal heir's succession rights as guaranteed under the HSAct.

 

Typically the need for contesting a forged or genuine will could also not arise,  since their is no provision to challenge the nomination papers.

 

Nominee is only authorised to receive and hold the properties.  Nominee cannot be a third mode of succession, can never be a beneficiary,  cannot be a heir or a legatee and hence cannot override the HSAct.

 

NOMINEE = TRUSTEE ON HOLD indefinetly.
IF their are no claimants and no legal heir left to the estate of the lone deceased  AND if the deceased has made a nomination to the local chai-wala...  Would the estate devolve to the chai-wala ... IF YES,  THEN ultimately to whom the chai-wala (trustee-on-hold)) would pass on the legacy.    NO.  NOT POSSIBLE.    The estate of the deceased  would automatically devolve to the State Govt (u/s 29)  and not to anybody else (including the nominee).


 

NOMINEE NO RIGHTs :
check out  : Smt.Sarabati Devi & anr  vs. Smt.Usha Devi
SC judgement date : 06/12/1983
SC bench : Venkataramian E.S.(J)  &  Misra R.B (J)

 

Keep Smiling .... Hemant Agarwal


Total likes : 1 times

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

  Search Forum








×

Menu

Post a Suggestion for LCI Team
Post a Legal Query
CrPC MASTERCLASS!     |    x