Wife's share in property
shyam lal
(Querist) 05 June 2021
This query is : Resolved
Along with her mother,brother & sister,the wife signs a MoU of family settlement pertaining to self acquired immovable property of her deceased father,(Intestate) situated within municipal limits (property already muted in fathers name) ,as fate could have it ,the wife passes away.
Query under which specific/act of law the husband can claim his wife's legal share of the property as per the signed MoU.in his own name.
kavksatyanarayana
(Expert) 05 June 2021
You have not mentioned whether the wife had children or not. For the wife's share, the children and husband have equal rights over her share under HS Act.
shyam lal
(Querist) 05 June 2021
Expert Kavksatyan,further for your info the wife has left one husband and one child,this is in respect to a Christian family,which law applies here?
T. Kalaiselvan, Advocate
(Expert) 06 June 2021
The successors to succeed the estates the wife left behind are her legal heirs, incidentally her husband and the child.
Since the MOU is not a legally recognized partition deed, if her siblings refuse to give her share in the property to her class I legal heirs, then the class I legal heirs/successors in interest can approach civil court with a suit for partition and allotment of their legitimate share in the property with separate possession.
The law of intestate succession under S. 32 of Indian succession act states that: The property of an intestate devolves upon the wife or husband or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter
S. 33, S. 33-A, S. 34 of the Act govern succession to the widow. Together they lay down that if the deceased has left behind both a widow and lineal descendants, she will get one-third share in his estate while the remaining two-thirds will go to the latter. If no lineal descendants have been left but other kindred are alive, one-half of the estate passes to the widow and the rest to the kindred. And if no kindred are left either, the whole of the estate shall belong to his widow.
S. 35 lays down the rights of the widower of the deceased. It says quite simply that he shall have the same rights in respect of her property as she would in the event that he predeceased her (intestate).
shyam lal
(Querist) 07 June 2021
Thanks Advocate Kaliasevalam,you have mentioned a word partition deed,kindly explain given the present circumstances how do the surviving legal heirs (father & child) have their share in the property as per the MoU as it is worded ,shares to be divided on percentage basis,as not mentioned by demarcation/ boundaries.Note except for the copy of unregistered MoU the husband has no other property papers in his possession.
T. Kalaiselvan, Advocate
(Expert) 08 June 2021
This is a tricky situation.
The husband and the children of the deceased wife, who is one of the legal heirs to succeed to the properties left behind by her father/mother who are reported to have died intestate, can claim her share in the said properties as legal heirs/successors in interest of the deceased wife.
The trick in this situation is that the husband and the children who claim the wife's share in the property should ignore the fact of existing unregistered MOU that was entered among the legal heirs/successors of that property.
He should act as if he is not in the knowledge of any such unmaintainable MOU and the court will not accept the unregistered MOU as a title deed, hence in the partition suit that the husband has been directed to file shall have the prayer for an equal division of the property with metes and bounds and separate possession of the same.
The court will take care of partition and other formalities once the court is passing a judgment in the partition suit.
ashok kumar singh
(Expert) 09 June 2021
agreed with views of earlier experts, therefore no further comments, so far.
thanks.
