Indian Law/Partition deed through Court Declaration
QUESTION: My father died 18years back. We are survived by my mother ( living ) , One elder sister, Two younger sisters and One younger brother.
Property No.1 - This is my fathers self earned property. Giving this property ,He had executed a will in favor of 3 sons of whom one son died unmarried.
Property No.2 - My father has left another property and did not mention anything about it. He had reserved that property if in case that required to be sold for the sake of my two younger sisters marriage. We, Sons had supported my mother and now we have saved the property and all my sisters are married and settled.
Property No.3 - My mother is owning one property in her name.She purchased this property from her father ( Our maternal grand father ) by way of sale deed 38 years back.
Now my mother is willing to divide the property belonging to my father and herself among us. She is planning to give us (Sons) a lion's share as we supported her since the death of her husband (our father).There are rumors that my sisters want to take my fathers property and claim share in mothers property after her death.
She wants to execute a family partition deed.But my elder sister is asking more share as she is the eldest. She is claiming that she has contributed much in saving the property by not claiming since the death of our father. She wants more share than other two younger sisters. She doesn't want us to settle the issue amicably.
My mother wants to declare this property through court, so that there is no problem for us in future, after her death.And also this is very much required for the purpose to obtain loan. Banks do not give loan if there is a dispute and unless there is proper title.
ANSWER: If a male Hindu dies without making a "WILL",then the wealth left by him are distributed amongst his legal heirs preferably equally to his class-I heirs comprising son,daughter,widow,son/daughter of a predeceased son/daughter etc. and otherwise to class-II heirs comprising father,brothers/sisters etc.as per the order prescribed in the Act.However,prior to amendment of the Hindu Succession Ac,1956 the daughters were excluded from participating in the coparcenaries ownership and thus discriminated on the ground of gender. It also led to oppression and negation of her fundamental right of equality guaranteed under Article 226 of the Constitution of India. Parliament felt the same and accordingly decided to make in necessary changes in the law. Accordingly, Section-6 of the Hindu Succession Act, 1956 was substituted by a new provision vide the Hindu Succession (Amendment) Act, 2005 under which daughters who were born and married before 1956 are also entitled to get a share in the property left by a deceased person.
In view of the above,in the instant case,after the death of your grand-father,his wealth devolved upon his children as stated in the WILL.However, this was subject to the fact that the Will was certified by the court by one of the beneficiaries.The property which was reserved by him for certain speific purpose and not mentioned in his WILL,it will devolve upon his children and wife equally.
Similarly,after the death of your mother,her wealth will devolve upon her legal heirs if she dies without making a Will.Otherwise as per the Succession Certificate to be issued by the court.
Your mother has absolute authority to transfer interest in property to her legal heirs by making a WILL.The said WILL may be got registered now and probated after her death.However,the WILL shall be enforceable,provided it was a valid WILL.It should not has been executed under duress or coercion.
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QUESTION: We are muslims and governed by Mohammadan Law. This property I am talking about is of my self earned property of my father .He had executed a registered will in favor of sons on whom one is dead. What would be the effect of deceased brothers share. Can sisters claim share. But according to will " Female members do not have any right in the schedule property.
My question is:-
1.Can my mother as a arbitrator execute a partition deed which should be binding on all of us. What would be the case if my elder sister challenge the petition or she doesnt attend the case?
2.Can my mother declare the property even in my elder sister's absence?
3.What type of suit should be filed for partition deed registration through Court? Should that be a declaration or else?
Since I am not aware about the Mohamedan Law of inheritance,I am unable to make any comments relating to your law of inheritance.However, my comments relating to yur other queries are given below:
If an arbitrator is appointed with the mutual consent of all the parties, then its decision shall be final and final on all of them.The Arbitrator has to give a reasonable speaking award.However, if anybody has any grievance,he can file an appeal against the said award to the court within the prescribed time-limit i.e.90 days the date of receipt of the award.Further, partition-deed can be executed only by the co-owners.
In view of the above,I would advise you to execute a "Family Settlement Deed" for equitable distribution of the wealth and to maintain peaceful and cordial relation in the family.It will also save the reputation of the family.However, it will require registration,since in the instant case,it is related to immovable properties.It can be excuted by the members of their family or their authorised representatives through Power of Attornies.So absence of your elder sister will be no problem to execute it, provided she gives a PoA in favour of somebody including any of her relatives.
The above course of action would be more convenient to you.However, please take all decisions in consultation with a suitable lawyer having knowledge of Mohamedan Laws also.