Anonymous
Asked September 06, 2016

Will, Partition and Succession Issues

  • 1 Answer
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Hi there, My grandfather has a property in Delhi. He died in 1987 and left a will notorised executed at Jaipur. My Grandfather had 6 children, 3 sons (2 have expired in late 90s) and one alive son.3 daughters all present currently. The property in question consists of 2 floors, where two of his sons family lives. (one Deceased and one alive son).Both of these parties approached rest of the people to settle the property amicably as per Grandfathers will which stated that this property should be settled in 1/3 proportion each to his three sons. We requested the 3 aunts to sign a Relienqishment deed favoring 3 brothers which they are not signing ( and ofcourse consider themselves 1/6 owner in this). What the 2 brothers family's who are currently residing there to demolish the said property and rebuild as the construction is quite old and offer the third brother family also to construct the third floor and enjoy the peaceful possesion. But the problem is that even if we invite the third brother family to come and stay and all three spend money on this, it still wont be legally ours and how do we settle this. what remedy is available to us legally.

Answer 1

It is unclear to me why the aunts were asked to sign a relinquishment deed in the favour of their brothers. If your grandfather’s will stated that the property will be divided into three parts, one for every son, the aunts do not have a legal claim in it. Since your grandfather died in 1987 and left a will notarised ‘executed’, the Hindu Succession (Amendment) Act, 2005 does not apply to it. The Supreme Court has held in this regard that a daughter’s coparcenary right in her father’s property will arise only if her father was alive on September 9, 2005[1]. The daughter’s right would not arise if her father dies before the 2005 amendment came into force.[2] Thus, it would not matter if the aunts do not relinquish a ‘non-existent’ right.

It is not clear in your question if you are a descendant of one of the sisters or the brother who is not living on the aforementioned property. In the latter case, there isn’t a problem of legal right on the property since, according to your grandfather’s will, it is 1/3rd your father’s. In the former case, if the three brothers are ready to settle the property and give each of their three sisters 1/6th of the property, there should not arise an issue of relinquishment; this is legally entitling the sisters to the property and, subsequently, disentitling them. This is a futile legal procedure. Since the three brothers are now the owners of the property, they are authorised under Section 7 of the Transfer of Property Act, 1882 to make a transfer in the name of their sisters. The 6 children of the deceased can conclude a deed stating the proportion and the terms of relinquishment/transfer of the abovementioned property. However, this is entirely subject to the will of the brothers to share their property with the sisters.

 

[1] Prakash vs. Phulavati, 2016 (2) SCC 36

[2] http://www.dnaindia.com/india/report-sc-says-daughters-whose-fathers-died-before-amendment-in-hindu-succession-act-have-no-right-to-inheritance-2141143

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