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Nura Nais AS (ABC)     08 September 2017

Wife or nominee, who gets the property ?

Hello!

I would try to keep my question short and simple.

1. Who will get the property after the death of husband(Hindu) ? If the nominee name is mentioned in the records. We live in Coop Society.

a) Nominee (Husbands Brother)

b) Wife

2.In the above case how can the wife claim the property and transfer it to her name  ?

 

Thanks!

 

 



Learning

 41 Replies

Raveena Kataria (Advocate )     08 September 2017

Note, as per the Hindu Laws, if the person in question, the husband, died interstate, that is without leaving a will, the self-acquired property of the husband (i.e. the property in his name,) will pass on to the first class heirs, that is his wife and children in equal ratio. If he leaves a will as to his self-acquired property, it shall pass on to whoever he names in his will.

{Balu manikantan} SUBRAMANYAM (Practising Advocate)     09 September 2017

Nominee is a custodian of property and the law of succession always prevails. consult a lawyer immediately for further help.

Krishna. Advocate (Advocate)     09 September 2017

You have not mentioned facts about the nature of the  Property. Whether the property in question was self acquired by your husband or it is an ancestral property. And you have not mentioned facts about  whether your husband died with out declaring WILL or not

Who will get the property after the death of husband(Hindu)?

If The property in question is your husband Self acquired property and  died without declaring a WILL then

As per the current legal standing ,after his death the said  property devolved on his wife, mother,  sons and daughters. They are the legal heirs. They divide the said property in equal share.

Who will get the property after the death of husband(Hindu) ? If the nominee name is mentioned in the records?

Nominee is a trustee only. He must distribute the said  property to the legal heirs.

Krishna. Advocate 9447963440

 

 


(Guest)

@ Mr. Krishna, Advocate

@ Mr. Subramanyam,

Can you please quote section of any law under which a nominee is treated merely as a trustee of the principal and he becomes liable to transfer property to the class-I or Class-II legal heirs?

Sorry for the inconvenience, if felt any, as nobody could convince me so far about the nominee being merely a trustee or caretaker of the property for and on behalf of the family members..

 

Krishna. Advocate (Advocate)     09 September 2017

There are various Acts, namely Companies Act, 1956 as also Companies Act 2013, the Maharashtra Co-operative Housing Societies Act, 1960, Banking Regulation Act, 1949, Provident Funds Act, 1925, Insurance Act, 1938, Government Saving Banks Act, 1873, Depositories Act, 1996, Mutual Funds Regulations, 1996, etc., that have provisions pertaining to nomination. But the Hon’ble Supreme Court and various High courts s are of the view that the above Acts cannot override the succession law and succession can be governed only by Succession Law i.e. Testamentary or Intestate as the case may be and not by any other Act.

Nura Nais AS (ABC)     09 September 2017

@Mr Krishna. Advocate

Thanks for replying. Thank you all for replying.

Here are few points:

1. The property in question was purchased by husband before marriage.

2.  Said property in not ancestral.

3. Husband did not left any WILL behind.

Krishna. Advocate (Advocate)     09 September 2017

Since the property in question is your husband self acquired property and your husband died with out declaring WILL, the said property devolved upon  his widow, mother,  sons and daughters. They are the legal heirs. They divide the said property in equal share.

Krishna . Advocate 9447963440

 

Nura Nais AS (ABC)     09 September 2017

Thanks for the reply @Krishna . Advocate

So one thing is clear that Wife is the legal heir and she will get the property.

But what is the process of transfering the property on her name ? Do we need to get a NOC from the brother of husband ? and produce a Succession Certificate in front of Society Resident Welfare association and/or SDM office ?

I contacted a Lawyer in my locality but he wasnt able to give any good solution to it.
 

Krishna. Advocate (Advocate)     09 September 2017

Collect  Death Certificate and Legal heir certificate. In addition to these documents you should have  ration card, birth certificate, ID card....

What is the process of transferring the property on her name ? 

What is the nature of property. Whether it is flat in co op society or it is your husband independent house.

In case of Flat in co op society, Make an application to secretary by enclosing  copy of death certificate.

In case of Independent house,Mutate the property in your  name. To get mutation done , you need above said documents.

Do we need to get a NOC from the brother of husband ?
Brother of husband has no share in the said property.And also NOC is not recognized as valid as per provisions of TP act.

If you want , you can get a declaration of your ownership from the court, to aviod any future legal challenge to your ownership.

 

Krishna Advocate 944 796 3440

 


(Guest)

@ Krishna Advocate,

I hope you have not seen my query, as yet. In my view, it is not so simple a case, as has been advised later. The society, as per the society laws, is not bound to recognize wife or any other natural heir of the deceased by ignoring nomination on its record, as earlier made by the deceased. Even legal heir certificate would not have any effect on the society's obligation towards a nominee. Succession certificate, particularly with specific reference to that property, would not be so simple to be obtained without getting the claim of the nominee condoned by the court of law without entering in to a legal battle with him and the society.

Under the cooperative laws, the society would be obliged to transfer the property to the name of the nominee on their record. The wife may not be able to get any share unless she wins a case against the nominee in the court of law by getting the rights of the  nominee set aside proving that nominee is merely a trustee. But the point is yet not clear, under which section of which Act, the nominee would be treated as merely a trustee to transfer property of the deceased to the names of the legal heirs.


(Guest)

The problem is very well analyses and quite a valid point has been raised by Mr. Jigyasu. That need be clarified. In my opinion, a nomination can be treated as a last will of the deceased in favour of the nominee. Had the deceased been so interested in his wife to inherit his property, he would have nominated his wife instead of his brother on the society records.

Mr. Krishna, advocate may like to enlighten the querist as well as other readers about the relevant section of any statute under which a nominee, as a trustee, is bound to handover the property to the legal heirs.

 

r.sankaranarayanan (Official)     09 September 2017

Your case is similar to a case in my CHS. I was Hon. Secretary. The male member died . Originally he had nominated his wife only. Just before few months of his death, he had changed his nomination to his wife, his nephew and his sister. This changed nomination was not known to his wife. After his death, his nephew put up a claim to transfer the flat to his name. I wrote to him that the transfer can be done to any one of the nominees and indemnity will have to be furnished. (Now, the rule has changed and the flat can be transferred to all the nominees jointly). At this point only the wife came to know that her husband had changed the nomination. She asked my advice. I told her that if there is no will, she can approach High Court and get the succession certificate.  She got that and the Society transferred to her name. So, please get the succession certtificate and the Society is bound to transfer the flat to the successor.(legal heir)

 


(Guest)
Originally posted by : Ramesh Singh
Agree with the suggestion by Mr. Krishna Sir, since the nomination done before marriage, so no hurdle. (Sec.22 of Co-operative Act 1912)

The Black's Law dictionary defines a "Nominee" as (2) A person designated to act of another, usu, in a very limited way.
(3) A party party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others.

 

Mr. Ramesh Singh,

You  may please like to re-read your own referred section 22 of the Co-op Societies Act, 2012 and confirm, if the stated sectione anywhere provides that the nominee should be treaqted as a trustee only and the society would be obliged to transfer the property in the name of the wife by ignoring the nomination made by the deceased?

Apparently, the.querist has come here for proper guidance, not to be misled in anyway. Your advice can misfire as her case can be expected to be dismised even at the initial admission stage, if she approaches a court of law on the basis of section 22, as that speaks only about the liability of the society for transfer of property in the name of nomination. The stated section clearly speaks that the property can be transferred in the name of any legal heir in no nomination subsists in favour of any person.

 

{Balu manikantan} SUBRAMANYAM (Practising Advocate)     10 September 2017

The Supreme Court, in the case of Sarbati Devi, which was decided in 1983, held that the nominee is a trustee of the property and is liable to hand it over to the legal heirs. This applies to deposits in bank accounts also

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