SHARE IN FAMILY PROPERTY
GOPALJI PANKHANIA
(Querist) 22 May 2009
This query is : Resolved
My father purchased a plot with house in Thane in the year 1980. The said property was registered in the name of my mother. The investment was made in the property by my father out of his retirement dues + other by way of personal loans. My father expired in the year 2006. We are three brothers (all married) & no sisters. First son has 2 sons only. Second son has one son & one daughter. Third son has only one son. Can you please tell me :
1. Can the mother refuse the share in the property to any one or all the 3 sons ?
2. Do the sons have a legal right in the parents property ?
3. Can the mother make unequal division of the property between the 3 sons ?
4. Does this property fall in the category of acquired property or heriditary property ?
I request you to please clarify and guid me in this regards at your earliest.
Thanks & Regards
B.B.R.Goud.
(Expert) 22 May 2009
1. No. the mother can not refuse the share in the property to any one or all the 3 sons, being purchased by father, unless the mother is an employee or invested her matrimonial gifted moneys etc.
2. Yes. the sons have a legal right in the parents property.
3. No. the mother can not make unequal division of the property between the 3 sons, which was not her own and absolute property.
4. Yes. this property falls in the category of acquired property but not in heriditary property.
Y V Vishweshwar Rao
(Expert) 22 May 2009
I Agree with Sri BBR Goud and further add that ;-
This is Your late father's Property- nominally - in the name of Your mother You three brothers along with your mother have equal shares
A V Vishal
(Expert) 23 May 2009
Dear Friends,
The property was purchased by the father in his wife's name unconditionally, hence, in my view, the owner is the mother and she has all powers to distribute the property according to her wish.
Further, When a husband purchases property in the name of his wife, the question in case of sale the husband intended to benefit the wife also will have to be borne in mind in coming to a conclusion.
It is well settled that the burden of proving that a particular sale is benami
and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances erringly and reasonably raising an inference of that fact. The essence of a benami is the
intention of the party or parties concerned; and not unoften such intention
is shrouded in a thick veil which cannot be easily pierced through. But such
difficulties do not relieve the person asserting the transaction to be benami
of any part of the serious onus that rests on him; nor justify the acceptance
of mere conjectures or surmises, as a substitute for proof. The reason is
that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the
question, whether a particular sale is benami or not, is largely one of fact,
and for determining this question, no absolute formulae or acid test,
uniformly applicable in all situations, can be laid down; yet in weighing the
probabilities and for gathering the relevant indicia, the courts are usually
guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4)the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case.
Refer this citation to have the correct picture which is applicable to an extent : Binapani Paul vs. Pratima Ghosh and Others reported in AIR 2008 SC 543 = (2007) 6 SCC 100.
A V Vishal
(Expert) 25 May 2009
Friends,
There seems to be disagreement between the views expressed, all those who agree with my opinion kindly press the thumbs up sign
Y V Vishweshwar Rao
(Expert) 27 May 2009
The Intention of the Father in registerign the Proeprty in the name of his wife, is to be verified /proved /considered.
GOPALJI PANKHANIA
(Querist) 13 September 2012
Dear Sirs,
I am being given to understand that property purchased before 1988 does not become self acquired property ? Pl reply
