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Indian Law/Property Dispute

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QUESTION: Dear Mr. Maitra:

My father has a flat in Mumbai since 1959. My mother was named a 100% nominee by my father. My father died in Dec 2004. We are 8 children (5 sons & 3 daughters)and Hindu. Seven of the eight are out of India. The society gave the membership certificate to my mother and told us that since she is only a nominee and does not have right to sell or gift the property to anyone. She is basically a trustee for the property. My father made a Will and has mentioned clearly that she has only a life time interest in the property and after her death the property will be divided amongst the legal heirs. The Will is not probated.

However, my sister taking advatage of our absence convinced our mother to gift the flat to her son and got it registered via gift deed, paid stamp duty, etc. The society still does not recognize the transfer as they know our family well and keep saying that mother is only a nominee and has no right to gift the property. Kindly advise if we are correct in assuming that a nominee by Indian law in co-op matters is only a trustee.

ANSWER: If a 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.
Since your father died after making a WILL,after certification of the same by the court,his wealth will devolve upon those to whom he desired to transfer his wealth after his death.As per the said WILL, your mother has only a life-interst.Further, it has been specifically stated in it that after her death ,the said property will devolve upon her legal heirs.Though a Nominee holds the property in trust until it is distributed to the benficiaries,in the instant case,after getting the WILL probated, your mother will become the owner of the property and thereafter the Society will have to change name of the owner of the property.Until then you shall be joint-owners of the said property.After the death of your mother,all her children including daughters shall be entitled to equal shares in it.
Alternatively to maintain peace and cordial relation within the family ,you can enter into a ''Family Settlement Deed''.It will facilitate equitable distribution of the wealth instead of concentration of the same in the hands of a few.Further,it would avoid litigation and will help to maintain reputation of the family.Even Courts have recognised such mode of settlement.However,it will also require registration of the property.
In view of the above,please take appropriate decision in the matter in consultation with a suitable lawyer.


---------- FOLLOW-UP ----------

QUESTION: Thank you for your prompt reply.

From your reply, I gather that our mother has no right to gift it to our nephew as she was only my father's nominee. So it is not a vaild transfer and we can fight it in court. Also wondering how did the registrar accept the gift deed when the law says it has to be equally distributed among all heirs. Kindly confirm because we are getting different meanings of the word nominee.

Based on your reply a nominee after the spouse dies does not become the owner but only after the WILL is probated.  We plan to probate the Will now (my father died in 2004)  as everyone in the family including our sister did not see a reason to probate at that time. WILL says " all membership rights in the GCH Society shall devolve upon my wife for life and therafte to my 8 children in equal shares" But are you saying that once it is probated mother becomes the owner and at that point she can gift it or sell it.

Our sister is not ready to give in and our mother is bed ridden and has no clue of what is going on. She cannot comprehend or speak. My last question is, if decide to go to litigation, do we have a strong case based on the Hindu law, etc. Kindly advise.

ANSWER: Since your mother was only a nominee and did not have the right to sell or gift the property to anyone. She was basically a trustee for the property. Donor can donate only such property of which he/she is the real owner.Therfore,the Gift-Deed was illegal in the instant case.
Since your father made a Will and has mentioned clearly that she has only a life time interest in the property, after her death the property will be divided amongst the legal heirs.However, this is subject to validity of the WILL and its certification by the court.Till then the WILL does not take effect.Further,even after certification of the WILL, your mother cannot transfer interest in the property to anyone because she has only life-time interst in the property.In other wards,it means she has no power to dispose off the property.She can only stay in that house during her life-time.
In view of the above,please take appropriate action on the matter in consultation with a lawyer.

---------- FOLLOW-UP ----------

QUESTION: Thanks so much for your positive reply. Would you have any Supreme court case studies on nominee or similar cases,  that we can use.

Answer
The legal position of Nominee has been explained by the Supreme Court in the case of Smt. Surbati Devi v. Usha Devi(1984SC346:1984 SCC 424(1).According to the said decision,amount payable to the Nominee does not mean that the amount shall belong to the Nominee.He/She will hold it in trust for the beneficiaries.
In view of the above,same principle will apply in your case.Your mother is a mere trustee for the property.

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Arun Kumar Maitra

Expertise

Contract Law,Companies Act,Sale of Goods Act,Partnership Act,Negotiable Instument Acts,Constitution of India,Arbitration Act,Consumer Protection Act,Maternity Act,Payment of Gratuity Act,Payment of Bonus Act,Shops & Establishment Act etc.The answer to the grievance of the particular online query depends on the facts of the particular case and law applicable to it.However,my comments relating to the various queries raised through the "All Experts" should not be treated as legal advices and should not at all be relied upon.I do not accept any responsibility for them.They will only give you some ideas about the probable merits of your cases.Ultimate actions/decisions in the matter may please be taken in consultation with the Legal Experts in the relevant fields.My purpose of giving the comments is to increase my own knowledge on the subjects and share it with others.It is purely of academic interest to me. I strongly feel the more knowledge we share,the more we shall be able to learn because there is neither any age nor any end to learning.

Experience

I have experience of dealing with matters relating to holdings of board/general meetings,maintenance of statutory registers,filing of necessary returns with the RoC,obtaining licenses for import,replies to Parliament Questions,dealing with the Parliamentary Committees,appearing before various courts to defend my employers,filing affidavits/counter -affidavits,preparing written statements/re-joinder,giving advice to management on complicated legal issues,preparation,drafting and vetting of contracts etc. I have more than 35 years of experiences to deal with the Company Law and Other Commercial Laws of leading Organisations in the country both in Public as well as Private Sectors.

Organizations
Member,Inst. of Chartered Accountants of India Member,Inst. of Company Secretaries of India; Member,Bar Council of India Member,All India Management Association Member,Delhi Management Association Ex. Vice-Chairman,Durgapore Chapter of the I.C.A.I. Expert ,CA Club India Expert ,Lawyers Club India Expert,AllExperts Ex. Faculty ,I.C.S.I as well as I.C.W.A of India Retd. Co. Secy. & G.M.(Law)/NFL(A Mini-Ratna A Schedule Central P.S.U.),New Delhi Ex.V.P.(Secretarial Dept.),Jaiprakash Associates Ltd. Ex. Co. Secy.,MAMC(A Govt. of India Enterprise),Durgapore

Publications
Nil.

Education/Credentials
M.Com;LL.B;A.C.A;A.C.S.

Awards and Honors
Obtained ''A'' Grade Certificate in the Parliamentary Procedure from the Secy. General of Parliament in 1994-95.It was in connection with a training course conducted by the BPE for PSU Executives.

Past/Present Clients
I am presently working as a Company Secretary in Old World Hospitality Pvt. Ltd.located in Delhi.It is engaged in Hospitality Industry.It has Units in India and abroad.It has been given the responsibility to look after operation & Management of ''India Habetat Centre'' located at Lodhi Road,New Delhi.

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