Right on father's property
P.C. Joshi
(Querist) 06 September 2011
This query is : Resolved
Dear Friends,
I need your advise on the following matter.
A having a residential House on 500 mtrs plot died survied by his wife B and two sons C and D. D has died two years back leaving behind two adult daughters.
B is living with surving son C because d's family is not in a position to look after her.
C has already one owend house where he is living with B. D's family lives in the house left by A. B has influenced his mother and got the house transferred in his name and issued a notice through court to D's family to vacate the house.
Is there any remedy with D 's family to apply for partition/injuncton against the vacation order.
Just small reply with applicable law will help me to go into detailed provisions.
Pls help.
Thanks
P.C. Joshi
A V Vishal
(Expert) 06 September 2011
If the property left by A is ancestral or otherwise, under the Hindu succession Act, the family of D has right and can file a partition suit for share of property, further you need to clarify the grounds on which B transferred to property to C since she is one of the sharer in the property unless the property was willed entirely to B.
P.C. Joshi
(Querist) 06 September 2011
Thanks for your inputs. Let me share with you that A has registered the house in favour of his wife-B during his life time. Still it is an ancestral property. Can B will it it fully in favour of one child i.e. C.
The ground taken by C is that he is taking care of all maintenence expenses of B.
Thanks.
A V Vishal
(Expert) 06 September 2011
Do you mean it is ancestral property of A?
R.Ramachandran
(Expert) 06 September 2011
Mr.Joshi is not coming out with clear facts. It is very doubtful that the plot in question is ancestral.
I feel that Mr. A might have purchased the plot during his life time out of his earnings, but got it registered in the name of his wife.
Since the property was in the name of wife "B", she being the absolute owner might have transferred the same in favour of her son "C".
In the facts and circumstances, D's family cannot stake any claim.
P.C. Joshi
(Querist) 06 September 2011
Thanks sir.
Raj Kumar Makkad
(Expert) 06 September 2011
In the given fact, B being absolute owner of the property even during the life time of her husband is fully competent to transfer her property as per her whims nd wishes which she has used in favour of C so the legal heirs of D have got no right to challenge the action of B or C.
prabhakar singh
(Expert) 07 September 2011
If D succeeds in proving that the property was purchased by A in name of B as BENAMI(as an ostensible owner)then property shall be deemed in law to belong to A. So in effect on death of A the property shall be deemed to have devolved upon A's widow(mother of C&D)and C and D equally by 1/3 each as per section 8 read with schedule I of Hindu Succession Act 1956.
A few of us may raise a question to my opinion by reference that BENAMI transactions are barred by enactment. To them the answer is that joint families are exceptions and are allowed to plead and prove a BENAMI transaction that can or could have taken place in family and here to it is a family of father mother and sons and daughters.
As right to sue has come up on daughters of D they shallbe the plaintiffs claiming 1/6 each.the defendant inthe suit would C and his mothr(widow of A)
viewing the matter from this angle,if the BENAMI is proved then no title would be deemed to vest in A's widow and hence even if she has executed any transfer in favor of C the same would be deemed to be without right,title or interest and as such would not be binding up on D to the extent of 1/3 being his/her share.
Viewing from this angle D's remedy lies in claiming partition of 1/3rd together with declaration that sale deed in favor of A's wife is a BENAMI purchase actually belonging to A.
R.Ramachandran
(Expert) 07 September 2011
According to Section 2 of Benami Transactions (Prohibition) Act, 1988
(a) benami transaction means any transaction in which property is transferred to one person for a
consideration paid or provided by another person.
According to Section 3 (1) No person shall enter into any benami transaction.
However, Section 3(2) provides exception by saying that "Nothing in sub-section (1) shall apply to the purchase of property by any person in the name
of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife of the unmarried daughter."
Thus, even it was a benami transaction, then once the property is purchased in the name of either wife or unmarried daughter,the same will be deemed to have been purchased for their benefit, and the property will belong to the person in whose name the property has been purchased, notwithstanding the transaction being benami.
If it is proved that the property was not purchased for the benefit of the wife or unmarried daughter, it will only mean that it was a benami transaction prohibited under the Act and lead to actions against the person who indulged in the transaction.
Therefore, even by proving that the benami transaction was not for the benefit of the wife or unmarried daughter, just because the funding was fone by the person, other legal heirs cannot derive any benefit and cannot claim any share in the said property.
