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Nitin Sharma   18 February 2022

will related

the plot in which we live is registered on the name of my mother my mother passed away in 2013 does my father has authority to do will in
absence of my mother.?


Learning

 3 Replies

Jaspal singh (practicing lawyer)     18 February 2022

Dear queriest, in case your mother had died intestate in that case all the legal hiers have equal right in the property, Legal Hiers means all your brothers , Sister and father have equal right in the property of your mother. you are the one legal hier of your mother.

Adv Jaspal S Maini

9999987283

Kevin Moses Paul   18 February 2022

Basically as per your concern Sections 14, 15 and 16 of the Hindu Succession Act, 1956, govern the manner in which the property of a married woman is passed on to heirs.

Section 14 describes what constitutes a woman’s property both movable and immovable, owned and acquired by her. However, the section does not distinguish between inherited and self-acquired property. It includes all property obtained through ‘inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescripttion, or in any other manner, and also any such property held by her as 'Streedhana'.

Moreover, Section 15 of the the HSA, 1956 states that -
"The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother".

Conclusively, if a wife (Hindu woman) has left her will, then the property will go as per the woman's will. But in case where she died intestate (i.e. without formulating any Will) then her property will be distributed according to Hindu Succession Act, 1956 in the order of preference as stated above.
Since you, your father and your siblings (if any) are all legal heirs of your deceased mother, none of you has a special right to formulate a particular Will for the property.

Hope It Helps!

Regards,
Kevin M. Paul
2 Like

Mayur Shrestha   18 February 2022

1. considering the facts of the case if your mother passed away intestate (meaning without leaving a will behind her) thus your father can inherit the same property as he is the lawful husband when she died but none of them can claim majority rights in the same as they all have equal rights on the property. Since the property is deemed to be that of her husband, the inheritance would be determined by the scheme as laid down by the Hindu Succession Act, of 1946. 

2. as you fall in Class - I of heirs upon your failure to obtain the same then that property would fall onto class - II (which include your father). 

3. Entry (d) of the HSA Act states that upon the failure of heirs in Entry (c), the property of the intestate female will devolve upon the 'heirs of the father'. The devolution of the property under this particular entry will take place presumably to be the property of the father. 

4. Furthermore in the case of Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, (1996) 8 SCC 525; Section 14 should be construed consistent with the constitutional goal of removing gender-based discrimination as provided in Article 14 of the Constitution of India and effectuating economic and social empowerment of Hindu females, thus allowing grounds for women to claim a fair share of the property of their intestate parents. 


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