• Inheritance of 'grant' property & sibling right

My father has a girl child from his first marriage and from the second marriage(i.e. to my mother) a girl and a boy(myself) child. That makes us 3 siblings. My father recently passed away and mother is alive.
My mother was 'transferred & granted' a land by West Bengal government as part of refugee settlement from Bangladesh (erstwhile East Pakistan) for which a deed exists. My father built a house on this land.My mother (the property owner) has a will bequeathing the property to me after her demise, in which it is mentioned that my siblings are settled.My sibling sisters (both half and own) are contending share in property by demanding money.
1. In the event of my mother's demise , is it mandatory to get a probate/NOC from siblings? 
2. If my mother wants to gift the property to me,is it necessary to obtain NOC from siblings?
3. What rights do my siblings have in the property before or after my mothers demise?
Asked 7 years ago in Property Law
Religion: Hindu

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8 Answers

1. Yes,in west bengal taking of Probate is mandatory and without it the Will has no value in the eye of law.

2. Since your mother is the owner of the proeprty then she does not require permission from anyone to gift the proeprty to you.

3. However your siblings may file partition suit claiming share in the huse if it is proved that the sae was built by your father.

4. So try to establish that the house was built by your mother only. If the mutation of the house is in the name of your mother then it will help you.

Devajyoti Barman
Advocate, Kolkata
22917 Answers
497 Consultations

5.0 on 5.0

1)probate is mandatory in kolkata

2) notice would be issued to all legal heirs

3) if they object to grant of probate testamentary petition would be converted into testamentary suit

4) mother can execute gift deed in your favour during her lifetime

5) gift deed should be stamped and regsitered

6) NOc from siblings is not required

7)during mother lifetime your siblings have no share

8) only if mother dies intestate would your siblings have equal share in proeprty

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

1. No, there is no requirement.

2. No, there is no requirement of their NOC's, she is the absolute owner of the property and has all rights to use, sell, gift or mortgage the property as per her wish and will, nobody can restrain her to do that.

3. there is no right over the property.

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Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

1. You is mandatory for you to get probate of the will to get a seal of legal validity of the said will. The probate application might be contested by your siblings.

2. It is not necessary to get NOC from anybody for getting the title of a property of a person transferred to others. However, please keep in mind that in similar case being C.O. No.1668 of 2003, Calcutta High Court has opined " It is therefore evident that the land was given by the government for the benefit of all the members of the family, may be that the deed is in favour of one of them". So, based on the said observation, the very title of the land solely claimed by your mother can be challenged by your siblings and in that case she might not have the right to will the entire property in your name.

3. Your siblings will claim that your mother was one of the beneficiaries of the grant of allocation of the said land along with all the family members including themselves for which she can not execute a will bequeathing the entire property to anybody without their written consent.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

in case your mother dies intestate claim by siblings would be maintainable even after their marriage

2) it is immaterial whether they have property in their name

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

1. Yes, validity of their claim is not dependent on the dates of their marriage.

2. However, the case law i have cited in my earlier post has not been reported in AIR for which not many Advocates are are about it.

3. So, you may pursue your matter ignoring the above citation.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

The transfer of property by testamentary disposition i.e., by a registered Will need not be probated nor NOC to be obtained from other siblings, however the bequest has to be properly defended and their claim has to be properly challenged owing to various factor, one such is that your father constructed the house on the property owned by your mother.

Your mother can execute a registered settlement or gift deed in your favor without taking their NOC for this however you are advised to mutate the property on your name and also transfer all the revenue and other records on your name immediately after this transfer during the lifetime of the donor so that it is confirmed that you took possession of property gifted to you and any challenge on this can be handled properly as per law.

If your mother happens to pass way intestate then both your and your own sister will be entitled to an equal share in the property, however since the construction of house was made by your father, the half sister will also enter into the arena seeking her share on that basis.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

Will the claim of my siblings still be valid if they are married, settled and have other property in their name?

'

The succession or inheritance right is not decided on the marital status, it is by birth.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

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