Property to sale after wife death

You can sell property anytime, even now after death of your wife after taking legal heir certificate of your wife that will be having name of your minor daughter and yourself. On behalf of your minor daughter you being natural guardian as well for yourself can sign on the sale deed as seller and complete the transfer of the property. No need to wait for your daughter to attain age of majority. Wrong and incomplete information provided in various websites by persons not even qualified lawyers should be avoided.

Thanks a lot sir for quick response. Just one question - Is it same as Succession Certificate on Delhi Government website (https://www.delhi.gov.in/wps/wcm/connect/doit_revenue/Revenue/Home/Services/Certificates/Surviving+Member) or I should be approaching advocate for getting this.

 

Thanks again for help.

IT is believed that you are all Hindu.

It is not clear which article you have referred to.

Confirm!

There are many threads on similar query at LCI and articles that you can search  in SEARCH option  in threads and articles…

e.g;

https://www.lawyersclubindia.com/articles/Alienation-of-Minor-s-Property-by-Guardian-6276.asp

You may also go thru carefully thru some publications e.g;

"In the present case, though it is stated that the property has been sold for the proper benefit of the minors, their protection, education and marriage, there is nothing on record to suggest that previous permission of the court was obtained by the natural guardian before transfer by sale in question," the bench said.

 

https://economictimes.indiatimes.com/news/politics-and-nation/guardian-cant-sell-minors-share-in-property-without-court-permission-sc/articleshow/26370683.cms

 

and

https://zeus.firm.in/wp-content/uploads/Law-Regarding-sale.-of-Minors-property.pdf

 

and understand and also judgments by courts of law.

 

Succession opens on date of death.

In case of deceased Hindu woman dying without disposing her estate/property in her life time by a valid/registered deed:

 If the property is self acquired/earned/absolute in the hands of Hindu woman the 1st right is of her husband (if alive as on date of her death) sons, daughters…………

If property is acquired from husband side and 1st right is of her sons, daughters…………and if they are not available then legal heirs of husband

If property is acquired from parents side and 1st right is of her sons, daughters………… and if they are not available then legal heirs of father..

 

 

 

Go thru;

Hindu Minority and Guardianship Act, 1956

6 . Natural guardians of a Hindu minor.- The natural guardians of a Hindu, minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

8 . Powers of natural guardian;

(2) The natural guardian shall not, without the previous permission of the court,-

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or

 

https://www.ncpcr.gov.in/view_file.php?fid=423

Guardians and Wards Act, 1890

11 . Procedure on admission of application.-

29 . Limitation of powers of guardian of property appointed or declared by the Court

https://ncpcr.gov.in/showfile.php?lang=1&level=1&&sublinkid=270&lid=708

Application based on provisions r/w above enactments of can be moved before Distt. Judge citing need of sale for benefit/welfare of child e.g; education expense, general needs, legal necessity   etc  and court may need to be convinced that Natural Guardian has not means to maintain the child.

IT has been believed that the minor can contest alienation of his property within 3 years of attaining majority. Still there are many judgments on matters as in your query.

Permission from court of law is better perspective.

Isn’t IT !

Approach  a very able senior LOCAL counsel of unshakable repute and integrity specializing in civil matters and having successful track record in such matters and……………….worth his/her salt..

Is the daughter ur own or is she a step child? The laws will be applied accordingly. Is not clear whether ur wife willed  her property to her daughter or u or died inestate

Your deceased wife is a joint holder.  As such you and your minor daughter are the legal heirs of your deceased wife.  First for your wife's share you and your daughter's name should be entered. And to sell the minor's share Dist., court permission is required.  You will have to show the geneuine reson why the property is put to sale, whether it protects the interest of the minor, if you proved then only court may grant the permission

Refer to the link posted by you;

Probably it is as per affidavit submitted by applicant ..and might be mere affidavit.

https://www.delhi.gov.in/wps/wcm/connect/doit_revenue/Revenue/Home/Services/Certificates/Surviving+Member

Legal heir certificate is usually issued after inquiry/verification report by officials of dept…If as per link posted by you the certificate is to be issued on your statement alone then it might be affidavit …..If it is issued after inquiry then IT might be certificate…

Ask the officials available in office at the link posted by you.

Prefer legal heir certificate..

The practical lawyers also lose cases…..even of the stature of Senior Lawyer Mr. Ram Jethmalani….

Mere age does not make any lawyer  a Senior Lawyer…

In all citations made available for you, the practical lawyers have lost cases in courts of law and also lawyers do win cases in courts of law…

Go thru carefully….and other citations that are clear..

If minor agrees to sign on attaining majority in favor of buyer, nothing like IT.

It could be the simplest recourse..

Till then buyer would be buying a defeasible title..

Approach your own very able senior LOCAL counsel of unshakable repute and integrity specializing in civil matters and having successful track record in such matters ……and worth his/her salt……

GO thru;

The minor contested and bar by limitation was a challenge…

At time of sale minor was barely of age 3Y…

The minor was accepted as intervener at age 34Y…

The matter was decided by Apex Court after almost 60years…

Supreme Court of India

Rangammal vs Kuppuswami & Anr on 13 May, 2011

Author: G S Misra

Bench: J.M. Panchal, Gyan Sudha Misra…………………….https://indiankanoon.org/doc/52210/

 

"Whether the sale deed executed by the de facto guardian on behalf of the minor without the permission of the court could be held to be valid ?

 

2. However, on hearing the appeal in the light of the prevailing facts and circumstances of the instant matter, we are of the view that the question also arises whether in a partition suit filed by the plaintiff/respondent No.1 herein, the courts below could shift the burden of proof on the defendant - appellant regarding the validity of a sale deed, which was executed when the appellant was admittedly a minor, contrary to the pleading in the plaint filed in a suit for partition, who claimed title to the suit land on the basis of the alleged sale deed. Still further the question arises whether the question of limitation could arise against the defendant/appellant shifting the burden on her to challenge the sale deed, when the story of execution of the alleged sale deed was set up by the plaintiff/respondent No.1 in the plaint for the first time when he filed partition suit against his brother, without impleading the appellant, but claimed benefit of title to the suit land on the basis of the alleged sale deed.

 

3…………..Rangammal was impleaded as second defendant in a suit for partition……..bearing O.S. No. 255/1982 

 

Rangammal, was transferred to their predecessors, who were father and uncle of the plaintiff and defendant No.1/Respondent No.1 Andivelu, by way of a sale deed dated 24.2.1951 executed in their favour by Kumara Naicker who claimed to be the legal guardian of the Rangammal when the appellant/Rangammal was admittedly a minor and was barely few years old, less than even three years………The sale deed was claimed to have been 
 executed for legal necessity in order to discharge the debt of the deceased mother of the appellant in the year 1951

33. Thus, this appeal in so far as the claim of the appellant- Rangammal to the extent of half of the share in the schedule to the suit property, situated on the eastern portion is concerned, stands allowed with a token cost which is quantified at rupees twenty five thousand as we are of the view that the appellant who was in actual physical and peaceful possession of her property which she had inherited from her deceased parents, was unnecessarily dragged into this litigation at the instance of the plaintiff-

Kuppuswami who filed a partition suit which was apparently collusive in nature as it included the share of a third party to which the plaintiff and 1st defendant's family had no clear title. Under the facts and circumstance of 
 the instant case, it was clearly a compulsion on the part of the appellant/Tmt. Rangammal to contest the collusive suit for decades Kwasting time, energy and expense over a litigation which was started by the plaintiff clearly with an oblique motive and evil design. Hence the cost shall be paid by the respondent No.1-Kuppuswami to the appellant-

Rangammal as indicated above.

 

Also go thru;

Section 8 of the Hindu Minority and Guardianship Act, 1956 ;

Selling of minor‘s property with definite share is void even by natural guardian with out permission of the court – a minor or any person having interest in minor can question the– sale is void against the minor in the absence of court permission ..

Supreme Court of India

Saroj vs Sunder Singh & Ors on 25 November, 2013

Author: …………………………………………………………………….J.

Bench: Sudhansu Jyoti Mukhopadhaya, V. Gopala Gowda

 

https://indiankanoon.org/doc/11519778/

Also ;

Amirtham Kudumbah Vs. Sarnam Kumdumban [1991] INSC 104 (16 April 1991)

Thommen, T.K. (J) Thommen, T.K. (J) Sahai, R.M. (J)

The appellant purchased the suit property of the minor from a person, to whom the same was sold by the father, the natural guardian, whereas the respondent purchased the suit- property from the minor within three years on his attaining majority.

The transfer made by the father during his son's minority was voidable at the instance of his son who was the real owner, and any person purchasing such property from the natural guardian obtained only a defeasible title.

A construction which is unduly restrictive of the statutory provisions intended for the protection of the interest of the minor must be avoided. This is all the more so in view of section 5(b) of the Guardianship Act which says.

For the reasons stated by us, we see no merit in the challenge against the judgment under appeal. The appeal is accordingly dismissed. We do no, however, make any order as to costs.

V.P.R. Appeal dismissed.

 

https://www.advocatekhoj.com/library/judgments/index.php?go=1991/april/22.php

Karnataka High Court

A. Chidananda (Deceased) By L.Rs. ... vs Smt. Lalitha V. Naik And Ors. on 19 January, 2006……..

https://indiankanoon.org/doc/905321/

16……………..the recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may he used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstance. In Radhakrishnadas case, it is observed that it is now well-established that what the alienee is required to establish is legal necessity for the transaction and it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself.

 

17……The sale of the suit property binds the 1st defendant, on the death of her husband, and on her minor children. It is the submission of the appellants' Counsel that there is no whisper that she sold the property as a Manager of the family and as such, she has no right to alienate the joint family property and the property that is sold is the share of Vasudeva Naik which should be treated as separate property and should not be made available for alienation either for family necessity. It is also argued that no where there is a mention in the recitals that the sale is for the welfare of the children and as such, the sale is not binding on the plaintiffs.

18……the natural guardian of a minor has the necessary competence to deal with even the separate property of the minors. Nonetheless the natural guardian remains a guardian of the minors in other senses also. It is also emphasised that natural guardian who has a share in the property along with the minors' undivided interest in the property is legally competent to alienate the property as a whole…

19… In the instant case what is noticed is, there is an undivided interest in the joint family and even if it is the private property and has to be treated as private property of the minor, that could also be dealt with by the natural guardian as is held by the Division Bench of this Court.