Nominee uncle

rajiv nayan (Querist) 26 December 2017 This query is : Resolved
Respected wise people merry Christmas and happy new year

my father died a year ago. He had a fixed deposit in SBI of 1 lac 50 thousand and a LIC wealth policy of worth 1.35 lac.they were from 2010 my father died on 13 dec 2016 leaving my mother and two sons.We lives in Bhopal in MP
we are Hindu.

the nominee in both of fixed deposit and LIC policy is my uncle the real brother of my father.

when my father made him nominee that time all was good but later there were disputes between my father and uncle.

Can my mother claim those assets being a legal heir.?If yes then how?

please suggest me what the law says in India

Hope you wise people understood my point

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Ms.Usha Kapoor (Expert) 27 December 2017
Not only your mother, you and y0ur siblings can file a suit in civil court against the nominee as class 1 legal heirs and claim Fixed Deposit dues and LIC policy dues from your uncle. He is only a trustee for FDS and LIC policy amount and not the owner.Get LR certificate from Local Tehsil Office and fight a case in civil court.First try for amicable settlement through Negotiations else file a money recovery suit.

Guest (Expert) 27 December 2017
Your question fits within the scope of an academic query, as several questions crop up out of your story, as your description does not provide any answer to such queries to feel that it is a real problem. The most important questions are:

1) When your father had his family with wife and two sons, was there any specific reason for him not to make nomination in favour of any of his own family member?

2) Death of your father occurred one year back, what efforts you have made so far to claim the amount? If made, with what result and if not with what specific reason?

3) If the amount of both the instruments has been claimed and received by your uncle? If yes, what efforts you have made to get the amount claimed back from him?

4) If the proceeds of both the instruments has not been claimed as yet by your uncle, is there any reason far that?

5) Have you not contacted the SBI and LIC authorities so far? If yes, what are their responses and if not why?

6) Have not you contacted some local lawyer to get solution to your problem for the last one year? If yes, what was his response and if not any reason for that?

Guest (Expert) 27 December 2017
The laws say that the payments of FD & LIC policy can be received only by the nominee, may he be the legal heir or not. The Bank or LIC would not be obliged to pay the proceeds of the instruments to any of the legal heir, irrespective of production of the certificate/ list of legal heirs.

Had your father wished to make beneficiary of the proceeds of the FD or LIC policy, he could well have nominated anyone of his own family members.

Guest (Expert) 27 December 2017
Don't go by assumption of Ms. Usha Kapoor that nominee is merely a trustee of the family. Even on asking, she has never been able to quote any section of the relevant law, which clearly states that nominee is a trustee. You may better ask her to quote relevant section of a specific Act, which states a nominee as merely a trustee.

Further, the nomination form of FD or LIC does not specify anywhere that the depositor of FD or the subscriber of LIC by making nomination would make only a trustee to receive the amount for and on behalf of his legal heirs in the event of his death, as if all of his family members are minors, insane, or handicapped to be not able to handle the money.

Anyone saying a nominee as a trustee openly tends to misguide people.

Vijay Raj Mahajan (Expert) 27 December 2017
The Hindu Succession Act, 1956 as amended provides:

The property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in class I of the Schedule, secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule.

HEIRS IN CLASS I :-
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; [son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son].

In your case the Hindu died intestate, namely without making any Will or testamentary document. In this case the above provision of law is operational and, the widow of the deceased and two sons each get one share each of the deceased Hindu male.
The Uncle or the brother of the deceased Hindu is Class 2 heir shall not be entitled for any share in the assets/property of the deceased Hindu male as the complete assets/property goes to Class 1 heirs.

As a nominee in Bank account or insurance etc. the uncle is supposed to collect the amount from these Organisations and distribute it to the heirs of the deceased Hindu male.
If the Uncle refuse to do so, file suit of recovery in the Civil Court against him if he has already claimed the amounts from these Organisations.

rajiv nayan (Querist) 27 December 2017
Sir Jigyasu
1) my father declared him nominee as the agent was my uncle's frnd both in bank and lic secondly my father did not took it that seriously at that time nor any one of us
2) Sir ,I was not aware of fact that uncle is nominee ,I thought we will claim it when needed .If I had rushed family members had thought I was a greedy person.

3)Uncle has not claimed those assets yet.I don't know why?

4)I want to know legal aspects before going to SBI and LIC.

5) different lawyers are telling different views so I took this forum's advice on my friend suggestion.

So can my mother get the claims??

rajiv nayan (Querist) 27 December 2017
My father left no will

Ms.Usha Kapoor (Expert) 27 December 2017
If you appreciate my answers please click likes.

P. Venu (Expert) 27 December 2017
Yes, your uncle,as the nominee, was only a trustee on behalf of the legal heirs... He is required to make over the funds to the legal heirs of the deceased i.e. the mother, wife and the children. Try to make an amicable settlement. Else, you can initiate legal action.

P. Venu (Expert) 27 December 2017
Learned Expert Ms. Usha Kapoor:
Your suggestion is right in every respect. Please do not impair the integrity of valued suggestion by seeking likes. This would certainly be a New Year Gift to this august forum and those who are actively associated with it.

Sankaranarayanan (Expert) 27 December 2017
With your uncle support, you all legal heirs can benefit the said amounts.if he has not support then knock the court door with the help of local lawyer and act accordingly

Kumar Doab (Expert) 27 December 2017
Agreeing with Shri P.Venu...............
that Ms. Usha Kapoor is right.

Kumar Doab (Expert) 27 December 2017
Dear Ms. Usha Kapoor,

Agreeing with Shri P.Venu on correct position posted by you, as posted above I have given you a like.

Best Wishes for coming new year......
May you remain healthy and happy.

Kumar Doab (Expert) 27 December 2017
Deposits in Banks;

RBI; Master Circular on Customer Service in Banks

20.1 Accounts with survivor/nominee clause

20.1.1 In the case of deposit accounts where the depositor had utilized the nomination facility and made a valid nomination or where the account was opened with the survivorship clause ("either or survivor", or "anyone or survivor", or "former or survivor" or "latter or survivor"), the payment of the balance in the deposit account to the survivor(s)/nominee of a deceased deposit account holder represents a valid discharge of the bank's liability provided :

the bank has exercised due care and caution in establishing the identity of the survivor(s) / nominee and the fact of death of the account holder, through appropriate documentary evidence;

there is no order from the competent court restraining the bank from making the payment from the account of the deceased; and

it has been made clear to the survivor(s) / nominee that he would be receiving the payment from the bank as a trustee of the legal heirs of the deceased depositor, i.e., such payment to him shall not affect the right or claim which any person may have against the survivor(s) / nominee to whom the payment is made.

https://www.rbi.org.in/scripts/bs_viewmascirculardetails.aspx?id=9008

Kumar Doab (Expert) 27 December 2017
Has the Uncle declined to claim?
Has the Uncle declined to pass the proceeds to ClassI legal heirs?

Even if verbally..............?

rajiv nayan (Querist) 27 December 2017
No uncle has not claimed it yet but he never denied to claim....He said I will claim it later as I m the nominee

rajiv nayan (Querist) 27 December 2017
Sir kumar Doab whats the overall conclusion how can my mother claim it

Guest (Expert) 28 December 2017
It seems the LCI a great confluence of such type of lawyers, known as experts, most of whom believe merely in reading between the lines and resolutely follow merely the assumptions, presumptions, contentions, pretensions, executive procedural circulars/ instructions by treating them over and above the law of the land, and wrong judgments, BUT NOT the real legal experts who could believe in law and also prefer to apply their minds! Probably, they presume as if the RBI is the law making or interpreting authority.

rajiv nayan (Querist) 28 December 2017
How can my mother claim it is still not clear

P. Venu (Expert) 28 December 2017
Your mother can still make a claim before the LIC/SBI and follow it up.

Guest (Expert) 28 December 2017
At least Mr. Kumar Doab (unreal name), a fake expert, who is neither a lawyer nor a teacher nor a manager, has got the opportunity to play a number game by making 6 posts just to add scores to his credit.

Of course, Mr. Kumar Doab is a good copying expert, he can provide you any copied material but without using his commonsense, whether that has any relevance to the problem or not. When he can provide guidance to some Goan Indian living resident to apply law pertaining to the deceased persons of the Portuguese national in Goa, any mess can be expected from him.

Best of luck for Mr. Rajiv nayan (querist), if he gives you at least 10% of the legally correct solution to answer your academic query, as your query does not seem to represent a real problem!

Guest (Expert) 28 December 2017
Ms. Usha Kapoor has often been found to be profusely misleading the querists, as like in the following thread:
http://www.lawyersclubindia.com/experts/Shere-transfer-fees-by-society-high-663206.asp

Mr. P. Venu has also been found to often provide misleading advice to the querists, like in the following thread:
http://www.lawyersclubindia.com/experts/Transmission-of-shares-without-probate-of-will-657856.asp

Guest (Expert) 28 December 2017
@ Mr. P. Venu,

If you believe that a nominee is merely a trustee of the legal heirs, why avoid quoting relevant section of the relevant law, which would clearly state that a nominee should be treated as merely a trustee of the legal heirs. Earlier also on asking, you could not come forward to quote any section of law.

Guest (Expert) 28 December 2017
@ Shri Vijay Raj Mahajan,

I respect you very much, as I feel you are a learned professional, but I do not expect at least from you to express your opinion, just on hit and trial basis, like others. Obviously there may be some misunderstanding in your mind about the nominee to be merely a trustee. So section of any law declares a nominee to be merely a trustee. He may therefore like to review his opinion.

Vijay Raj Mahajan (Expert) 28 December 2017
@ JIGYASU,

Please read my complete reply and tell me where I called the nominee a trustee. What I mentioned in the Hindu Succession Act, 1956 provisions if you want that check it yourself. Mother, two sons are class 1 heirs whereas the brother/uncle is class 2 heir. Class 1 heir get preference over class 2 heir according to the Hindu Succession Act. This what I have said in my reply.
Issue who is going to own the money of the deceased whether, class 1 heirs or nominee uncle will be decided by the court not me or any other expert here.

Guest (Expert) 28 December 2017
The discussion seems to be taking an unduly ugly turn, probably just in the race to not be treated as a wrong advisor.

To make at rest the controversy created so far, I may say to my firm conviction, a NOMINEE is definitely NOT a trustee.

No Act of Law has so far prescribed a nominee as a trustee of the legal heirs. It should not be forgotten, a trustee is appointed under the provisions of the Indian Trusts Act and that 'nomination' is not regulated by that Act. A trustee is appointed only if a Trust is created by some person for the benefit of the members of his family. A depositor in a Bank for opening an FD account or a purchaser of an LIC policy from an Insurance Company does not create a Trust.

So, the experts, who believe that a nominee is a trustee of the legal heirs, they may like to go through the Indian Trusts Act, instead of making it a point of prestige not to be termed as wrong in their opinion.

They are welcome, if they come forward with some specific section of any law that treats a nominee as merely a trustee. If someone quotes some specific section of law, I would not feel any hesitation to admit myself as wrong. BUT PLEASE don't try to quote any case law. I don't treat any judgment as law or replacement of the main law.

Guest (Expert) 28 December 2017
@ Shri Vijay Raj Mahajan,

Please excuse me, the Hindu Succession Act deals with intestate cases, where the property is not designated to any specific person during the life time of a deceased person. The Act neither deals with making or revocation or automatic annulment of nomination, nor anywhere states that in discard of nomination the already assigned property through nomination should go to the legal heirs of the deceased against his wish (nomination). Cancellation of will solely rested with the deceased person, not anyone else, even the court of law in the absence of any illegality in the nomination or any legal provision.

So, the case of the querist does not fall within the purview of the Hindu Succession Act.

Vijay Raj Mahajan (Expert) 28 December 2017
@ Jigyasu,

I feel you behave as the judge of the Supreme Court of India and deciding the issue as full and final here in this forum, Sir, please carry on as you wish I have nothing to add, let the person concerned take step as he so desire.

Guest (Expert) 28 December 2017
@ Vijay Raj Mahajan,

Your pleasure, whatever you may assume. I very well know that the truth is always unpleasant and unpalatable for majority of the people in the world. Being bitter and unpleasant, sometimes does not prevail even in the courts of law, where the cases are not represented properly by the advocates.

Anyway, but still I regard you as a sensible learned professional. However, I would request you to recheck the position of law on the subject matter. I am sure, you would sure find my opinion as correct.

I am pretty sure, the concerned person did not have any such problem in reality, He would not take any step to go to the court of law. He just wanted answer to some of his academic question.

Guest (Expert) 28 December 2017
@ Rajiv Nayan,

I understand, it is your academic query with no reality visible in your description, but even if true to some extent, all depends upon the mercy of your uncle. He may or may not give even a single paisa to your mother.

Nominee uncle

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