Frequently Asked Questions On Sale Deed And Inheritance

QUERY #1

After the death of his first wife,  my father married my mother. He had two sons with his first wife and two sons and one daughter with my mother. After my father died due to electric shock 3 to 4 years after marriage, my mother married another man whose name we both sons now have as surname. His name is also in all our documents now.

My father's sons from his first wife left us half the property till we were 30, but now they have refused to give us ancestral property. Is it possible to take that property again? 

ANSWER:

The short answer to your query is YES. You may get the property back.

Ancestral property laws in India are discussed in the Hindu Succession Act, 1956, where it is defined as any property that has been passed on for four generations of male ancestors. This property cannot be partitioned, sold, or divided during this time, as that would result in the property losing its ancestral status. Also, the four generations of successors have the right to claim this property, and therefore the current owner of the property cannot sell this property without the consent of these successors.

Here, an aspect that has not been looked into is that the wife being a Class I heir, may inherit her husband’s ancestral property upon her death, even though she is not a coparcener to that property and thus cannot have a claim on that property when her husband is alive.

Section 14 of the Hindu Succession Act clarifies that any property owned by a woman, including through inheritance, is absolutely her own. Therefore, the second wife, along with the five children of the father from both his wives have equal claim towards the ancestral property. 

Since all the successors have equal claim towards the ancestral property, no single successor can restrict or revoke the other’s claim towards the same. Therefore it would be in the best interest to file a partition suit in the respective Court so that a partition  deed can be created and the property can then be divided equally between all the inheritors.

I hope this helps. Thank you for your time and patience!

QUERY #2

Is it legally possible to file a petition for share in the deceased father's assets as the other legal heirs are not allowing it due to ulterior motives including exhortation?

ANSWER:

The short answer to your question is NO. A partition suit has to be filed in court for the same.

Assuming that your father died intestate and the property in question was self-acquired by your father and not ancestral, you may claim your share of the property by filing a partition suit in Court. If your father had prepared a will before his death for his self acquired property, then you cannot claim the said property if your name is not present on the will after his death.

But if the property is ancestral, you have every right to claim it as per the Hindu Succession Act, 1956, as the son is a coparcener to the property. But it must be noted that for a property to classify as ancestral, it must have been passed on from four generations of male ancestors, and was not partitioned, sold, or divided during this time.

If the property is self acquired, the son is a Class I legal heir to his deceased father’s property as per the Hindu Succession Act, 1956, and may thus claim his part of the property. If there are legal heirs asking for their share of the property, it is best to file a partition suit in Court, after which the Court may create a partition deed where the property will be shared equally between all the legal heirs.

I hope this helps. Thank you for your time and patience!

QUERY #3

My father died and the self acquired property of my father was gifted by my mother to her grandson. I am not sure if there is a will or not. It has been 5 years since my father died but till date no copy of the will is shared with me. When I asked her she said it is not there. She says it was your father's wish to give the property to the grandson. I presume the property may have been transferred to my mother by way of nomination. 

But does that give her the right to gift to her grandson without the consent of her class 1 legal heirs? How to be sure if there is a will or not?

Now if there is no will then will the gift deed become null? Do I have to send a legal notice to my mother and her grandson to claim the property? Please advise. 

ANSWER:

The short answer to your query is YES. You can claim your share in the property if there is no will involved.

Property inheritance and succession in India is mainly governed by the Hindu Succession Act, 1956. As per the same, the son is a legal heir to the intestate father’s self acquired property, and is a Class I legal heir, meaning they have more legal priority over the grandchildren. Also, the wife along with the children have equal claims towards her husband’s property, and can claim her share of the property.

But it must also be understood that as it is a self acquired property, the father may choose to not include his son in the will during its creation, which cannot be legally questioned by the son. The son cannot have any legal claim towards it in this case.

If the mother claims that there is no will, then you may choose to file a partition suit in Court seeking to divide the property equally between all the legal heirs, after which the Court may create a partition deed to divide the property equally between the legal heirs. The mother may choose to gift her share of the property to her grandchildren, which, being a self acquired property, cannot be questioned by her children.

If there is no will and the mother gifted this property to her grandson, then that would be illegal as to gift an immovable property, a gift deed must first be registered by the donor, where the proof of ownership must be shown, as per The Transfer of Property Act. Since she is not the sole owner of the property and so the titles are not under her name, she cannot gift it.

I hope this helps. Thank you for your time and patience!

QUERY #4

An immovable property is acquired by A . He dies. After his intestate death, the property devolved upon his wife and one son. The property consists of Ground and First Floor. There is no partition effected between the mother and son. Now if the mother wants to gift her ½ undivided share, right, title and interest in the land and Ground Floor Portion (which is where she lives and the son who is married is in the First Floor) to her elder sister. Can she gift the property independently, i.e. without the intervention of her son / consent of his son ?

ANSWER:

The short answer to your question is YES. She may gift her share of the property without consent from her son.

But first, she must claim her share of the property. Since the husband died intestate and the property is self acquired, both the wife and son have equal share towards the property, as per Hindu Succession Act, 1956. Also as per Section 14 of the same act, the property that is inherited or acquired by any woman is absolutely her own. 

In India, to gift an immovable property, a gift deed must be created and registered, which requires showing proof of ownership of the said property, according to Section 123 of the Transfer of Property Act.

Therefore, once she claims her property and files a partition suit to the court, she may get the property partitioned through the partition deed created by the Court. Once this is done and all the titles are under her name, she is free to gift it to anyone she wishes to.

Another thing to note is that once a property is claimed, the partition suit must be filed within twelve years of the day of the claim, as per the Limitation Act 1963.

I hope this helps. Thank you for your time and patience.

QUERY #5

My mother was a bedridden patient and owned a property in Maharashtra. She made me, her only son, the Registered Power of Attorney and gave me the rights to sell her property. A registered release deed was also created which gave me the title rights to 50% share. Unfortunately, my mother passed away amidst the process of sale of the property. How can I sell this property under this circumstance?

ANSWER:

The short answer to your question is YES. You may sell this property.

The Power of Attorney is only valid as long as the grantor or donor ( the person on whose behalf the person granted the power of attorney acts ) is alive. This means that after the death of the grantor, the Power of Attorney is automatically revoked. 

A release deed is used to release one party from any legal claims and responsibilities in the future, and is mainly used to transfer property. Release deed is governed by Transfer of Property Act, 1882. 

Coming to the question, since your mother passed away before the sale was completed, you can have ownership of said land as you are a legal heir to your mother.  The son is a legal heir to the properties left over by a female dying intestate as per the Hindu Succession Act, 1956. Therefore, the property that was left after the property you were granted with the release deed is now under your complete ownership and you may sell it to any individual you choose.

I hope this helps. Thank you for your time and patience!