• Appropriate legal action-appeal

LAWERS OPINION: WHICH IS APPROPRIATE-CORRECT TO FILE APPEAL/MISC.CASE
Sir,
QUESTION:
I am to file petition beforethe CIVIL COURT to get the declaration by the court as successor of property which are in joint names for PARENTS and AUNTY(My fathers younger brother=Uncle dead long back) and where all parents and aunty dead, both have no SISTER also and both brothers had no children but I have been adopted from childhood (64 years before)from the distance relative of my adopted parents. Now I being adopted under a registered adoption deed in 1990, I got the legal heir of my parents to take the property in my name. Since ancestral property in JOINT NAME of aunty and parents I could not do it through MUTUATION PROCESS from TAHASILDAR who is of view to get it done through CIVIL COURT.

LAWERS OPINION: WHICH IS APPROPRIATE-CORRECT TO FILE APPEAL/MISC.CASE

Ist OPINION
a)You were advised to file a declaratory suit before the court to declare you as the successor to succeed the properties lying on yor deceased aunt's name. A court order/judgment to this effect can not be questioned by the Revenue authority and would promptly effect mutation on an application submitted by you enclosing the court order. 
If there are no relatives alive and you consider yourself as the residual relative to the deceased who has died intestate, then you can file a declaratory suit to declare yourself as the successor in the capacity of the only relative surviving heir to the deceased and how she is related to you etc. 
The declaratory suit can be filed in the provisions of civil suit nd provisions of Hindu succession act. 


IInd OPINION
a)You have to apply for letters of administration from district court 
b) section 290 of indian suuccession act 
c) 290. Grant of letters of administration to be under seal of Court.
d) Section 291 of the said Act, which deals with Administration bond::
e) However, before such grant of probate or letters of administration under the seal of the Court in the forms mentioned above is issued to the petitioner in whose favour the Court has passed order for grant of probate or letters of administration, he is required to complete certain formalities which, inter alia, include payment of Court-fee (if any) and giving of Administration bond as provided in Section 291 read with Section 300 of the Indian Succession Act, 1925.
Asked 7 years ago in Civil Law

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36 Answers

1) you have to apply for letters of administration from HC or district court having jurisdiction as your aunt died intestate

2) pay the court fees . You will have to execute administration bond

3) it would not take more than 6 months

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

1) you had sought our opinion as to which is the appropriate strategy to be adopted whether to file declaratory suit or apply for letters of administration

2) I had given you my opinion that you should apply for letters of administration from court as aunt died intestate

3) in my view you should not file declaratory suit but apply for letters of administration

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

I had cited provisions of Indian succession act wherein it is specifically mentioned that in case deceased dies intestate leaving any immovable property you have to apply for letters of administration from HC or district court having testamentary jurisdiction

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

If the property is in joint name of your parent and your uncle/aunt then neither of the above proceedings is suitable to you.

You will have ti file a suit for partition and separate possession in which your concern for declaration on succession would also be addressed.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

LAWERS OPINION: WHICH IS APPROPRIATE-CORRECT TO FILE APPEAL/MISC.CASE

Out of two options before you, it is you who have to decide about the course of action to be followed with the assistance of the lawyer who you would like to engage for this purpose.

O dont think you will be filing the case as a party in person.

You would be looking for the services of an experienced lawyer for this purpose.

If you find that the layer is doing anything against your interest or his case may not fetch you the desired result, you may either clarify the details from other lawyers or terminate his services and engage another lawyer.

The relevant papers related to property documents are with you, so can get an idea through an opinion from an experienced lawyer in local

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

I need the section of Hindu Succession Act under which the DECLARATORY SUITY shall be filed to get the judgment in favour to declare as only survivor of my aunty

You cannot find any such provisions in the succession law.

This is general law.

If there is no specific provision in the law of intestate succession for this position, then you may have to a declaratory suit to declare yo as the residual relative to the deceased to succeed their properties, or else the government will take this property.

If I have to apply for letter of administration, will the judgement of CIVIL court will be in favour so that TAHASILDAR will change the name of my father and aunty and transfer in my name all properties (LAND property only) change PATTA accordingly.

The Tahsildar is the revenue authority under the respective state government to the jurisdiction within his control.

The Tahsildar cannot refuse to oblige the court order in this regard.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

Whether this is to be filed before the court or not Answer me this opinion was given by MR T KALAISELVEN,ADVOCATE.

You can file a suit only before a court of law and not elsewhere.

What is your question or what answer do you expect?

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

Whether I should follow the opinion given by Mr T KALAISELVEN,VELLORE or MR AJOY DESAI,MUMBAI

There is no compulsion io you to follow whose advise or opinion. you may ignore everyone's opinion and can do whatever you feel right.

The lawyers here cannot force or compel the clients to follow their opinion.

The clients are not bound by any such obligations.

You have to obtain a proper opinion from a local lawyer before taking a final decision on this, if you are not able to decide or dont understand the issue properly.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

The answers were not intended to hurt you or to misguide you.

The intention was to get you familiarized with different options.

As a matter of fact your proposal to file a partition suit for getting your parents property and file a declaratory suit is good idea.

But the problem if that you are the only surviving legal heir to your deceased parents, hence the property belonging to your deceased parents automatically evolves only on you and ther is no problem in inheriting that properties. The problem is with the properties left behind by your deceased uncle and aunty. Legally you have to declare yourself as a successor in interest on the basis of the only residual relative and successor surviving the deceased persons.

As far as court cases are concerned the time taken for any particular case cannot be predicted owing to several factors, you will come to know the practical difficulties and hurdles once you enter into a court with a litigation.

Please do not take it personal, you can discuss the matter with any lawyer of this forum on a private consultation too for further and personal clarifications.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

Sub-section (1) of Section 264 of Indian succession act speaks of the jurisdiction of the District Judge in granting and revoking probates and letters of administration in respect of all cases within his district,

2) you will have to apply for letters of administration as your aunt died intestate

3) letter of administration would not take more than 6 months if there is no contest from other legal heirs

4) declaratory suit would take some years to be disposed of

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

You would be the heir of Aunty

2) since Aunty died intestate property inherited by her from her husband ie uncle would devolve on legal heirs of her husband

3) . Sub-section (2) of Section 15 of Hindu succession act carves out an exception in case of a female dying intestate without leaving son, daughter or children of a pre-deceased son or daughter. In such a case, the rule prescribed is to find out the source from which she had inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2)(a). If it is inherited by her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section 15(2)(b)

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

You should file letters of administration before the high court or district court having testamentary jurisdiction

2) you would be the legal heir as per section 15(2) (b) of Hindu succession act

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

‘heir” means any person, male or female, who is entitled to succeed to the property of an intestate under this Act:

By this it is confirmed that the heir means it may be a male or female, but you should read the further words that "who is entitled to succeed to the property of an intestate"

In the present situation you are not a legal heir to the deceased aunt, and otherwise not entitled to succeed their property as their heir.

You can claim inheritance of property in the capacity of residual relative of the deceased.

Under Sec 12 of Hindu Adoption and Maintenance Act, Adopted child becomes cparcener in Joint Hindu Family proprty after serving all his tis with natural family.

This again shall be interpreted that you can be treated as a coparcener via your adoptive parents and not to other relatives. Moreover it was the ancestral properties for your aunt and uncle and your own adoptive father.

You can claim a share as a coparcener to the properties of your adoptive father only and not from the ancestral properties that belonged to your uncle or aunt. You are not a coparcener to them.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

Should I file "LETTER OF ADMINISTRATION" before the COURT ( which is best option for me) on the basis of " I,being HEIRS (u/s Sec 15(2)(a) of uncle and the ancestral property is jointly held by aunty and my father

who are also dead.

In my opinion you may be wasting your time, energy and money by filing incorrect and inappropriate cases.

Consult more lawyers in the locality and proceed as per the advise which seems to be best advise to you

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

Your lawyer has given you wrong advice

2) succession certificate is only for movable debts and securities

3) you have to apply for letters of administration from HC or district court as it pertains to aunt share in immovable property

4) number of judgments on the said issue

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

You are right in yor opinion that invoking section 372 of Indian succession act may not be the correct position of law in this regard.

The succession certificate is for movable assets only.

In your situation, you are neither a legal heir nor a successor in interest to inherit the deceased aunt's property.

You are going to acquire it on the basis of the residual relative especially in the absence of class I or II or any other type of legal heir surviving her death.

Therefore under the prevailing circumstance, the court has to declare you to be the lone surviving relative to the deceased to acquire the properties left behind by her.

Now you have to decide whether you want to waste time, money and energy by filing inappropriate cases or want to strike it on the head of the nail by filing a proper case using correct position of law, to complete the process easily that too in a very short time since the defendants are 'nil' in this regard.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

Property is in joint name of my FATHER and AUNTY only who died. I am adopted son of my father I am not CLASS I or CLASS II heir of my AUNTY(UNCLES WIFE) NO SISTER OF father or uncle. All died. I can take the share of my father, but how court will declare me as SUCCESSOR of aunty's SHARE. Is it as " RESIDUAL RELATIVE ALIVE AT PRSENT" or ONLY SURVIVING MEMBER or AS A DISTANCE RELATIVE APPEAL WILL BE MADE. NO CLAIMANT IN THIS PROPERTY.

OR GOVT. WILL TAKE THIS SHARE OF AUNTY.

There is no problem in inheriting your father's share i the property since ou are his adopted son hence you are entitled to succeed his share in the property as per succession act on the basis of class I legal heirs.

Whereas to the share of your aunt's property, you have to be declared as the lone survivor and eligible to succeed to the intestate property by court of law in a declaratory suit to be filed by yo seeking the said relief.

You cannot seek partition because from whom are you going to seek partition of your father's share in the property, there is no defendant against whom you can file a partition suit.

If you are filing a partition suit with defendant 'nil' then you may lose the share of your deceased aunt, which will be acquired by the government as there is no claimer.

This move will be a great set back and you may suffer a heavy loss.

Take wise decision patiently by discussing with an experienced lawyer in the local.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

You are the sole legal heir of your father and Aunty

2) suit for partition would be required for division of property if there are other co owners /legal heirs to property

3) apply for LA as advised . Don't file suit for partition

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

Declaratory suit would take more than 5 years to be disposed of

2) it all depends upon pendency of cases in civil court in your city

3) local lawyer can guide you in this regard

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

In the declaratory suit that you may propose or intend to file for seeking to declare yourself as the successor to the immovable property left behind by your aunt n the capacity of lone surviving relative, there can be no respondent.

Hence the court would follow the laid down procedures in this regard by ordering general publication and newspaper publication besides verification of reports from the revenue department to authenticate your claim.

Once this process is completed then the court may ask you to depose evidence by sworn affidavit before court and then may pass judgment and decree to this effect.

All these processes may not consume more than three months or at the maximum 6 months.

You ensure you engage an experienced and knowledgeable advocate to accomplish this task.

You dont need to look for any citation at this stage itself, your advocate will take care of this and since this is just another ordinary suit, the court may not insist on any citation or precedence.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

You are right that heir as per provisions of section 3(1)(f) ‘heir” means any person, male or female, who is entitled to succeed to the property of an intestate under this Act:

In the situation of your aunt's intestate death, you cannot be considered as a legal heir to her to succeed her properties in the capacity of her legal heir.

You are the lone surviving (distant) relative who can acquire the property provide the court declares you as lone surviving relative who can acquire or succeed the property.

Nothing prevents you from discussing all these issues at length with your lawyer, I am sure that he can very well make you understand the underlying law and issues involved in this.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

What basis you say property is ancestral?

2) property which has remained undivided for four generations is ancestral property

3) in the present case kindly clarify as to whether it is ancestral property of uncle / aunt

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

1) it is self acquired property of grandfather

2) on grand father demise property was transferred in name of his 2sons ie father and uncle

3) since uncle died patta was issued in name of your father and aunt

4) on aunt demise property would devolve on legal heirs of her husband as it is inherited property of Aunty

5) you are the only surviving legal heir of your uncle

6) you can file for letters of administration

7) It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property.

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

You have sadly mistaken the meaning of ancestral character of a property.

Once the property was inherited and the name had been transferred and mutated, the character of ancestral property extinguishes.

Whatever the circumstances, you are not the legal heir of your aunty.

Being a legal heir of your father, you hae rights to inherit his share in the property, whether ancestral of his own and absolute proeprty.

Just because it is combined with your aunty, her share in this property cannot be claimed by you as a right.

The rejection of your application by Tahsildar is the correct action.

You have to obtain title declared by court to succeed to this property as a residual relative, becasue in any maner you will not become a legal heir nor you can claim this as ancestral property or your entitlement in it or any right in it.

You have been explained the legal position very clearly in the previous posts and you cannot get more proper clarifications outside this forum but you seem that you do not want to understand the explanation given by the battery of expert lawyers here and are in the habit of raising the same question in different forms.

Hope this would convince you

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

The basic aim of section 15(2) of the Hindu Succession Act, 1956, is to ensure that inherited property of an issueless female Hindu dying intestate goes back to the source. It was enacted to prevent inherited property falling into the hands of strangers. S.R. Srinivasa and Others v. S. Padmavathamma [(2010) 5 SCC 274]

2) A fundamental tenet of the law of succession has been the proximity of relation in which a Successor stands to the person who originally held the property that may be the subject matter of inheritance in a given case.

3) Thus, in a case where the mother of her husband is alive, her whole property would devolve on her mother-in-law. If the mother-in-law is also not alive, it would devolve as per the rules laid down in case of a male Hindu dying intestate i.e. if the father of her deceased husband is alive, the next to inherit will be her father-in-law and if in the third category, the father-in-law is also not alive, then her property would devolve on the brother and sister of the deceased husband.

4)section 16 rule 3 provides that if the property of a Hindu female dying intestate is to devolve upon the heirs of her husband or her father, then it shall devolve upon them in accordance with the provisions of section 8 to 12 of the Hindu Succession Act as these sections deal with the rules of succession in case of Hindu males.

5) 8. General rules of succession in the case of males.

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of two classes, then upon the agnates of the deceased; and

(d) lastly , if there is no agnate, then upon the cognates of the deceased.

5) "agnate"- one person is said to be an "agnate" of another if the two are related by blood or adoption wholly through males;

6) you have stated that you are the only surviving legal heir. you can file letters of adminstration

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

Since this question has been addressed to one particular expert lawyer based on his views to the previous questions, moreover since I have given sufficient explanation to substantiate my opinion to the question, I think I shall keep off from answering any more to this question and I reiterate my previous opinions to the subject query.

The author can analyse all the answers and proceed conveniently after analysing all the options and being convinced of what steps to be taken further.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

you can apply for letter of administration as agnate

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

The share of property in question is on your aunt name and you are not a legal heir to her as per law,

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

But the local lawer asking to file MISC CASE before court. Again under which provision/section of law it can be filed. It will not take much time

What is the reason that he is asking you to file a miscellaneous case for?

This is matter of declaration or lone surviving relative to the deceased person to succeed her properties.

This is not a miscellaneous thing for or, it is a mater of vital importance.

Hence what is preventing him (your lawyer) to file a declaratory suit which shall fetch you the desired relief.

Sir, You are the better judge of the situation, so you may decide further course of action.

Since there being no defendant/ respondent, the suit may not take more than six months to get disposed.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

1) numbering of suit after removal of office objections take around 15 days

2) courts are over burdened that you generally get a date after 2 months

3) it is doubtful that declaratory suit can be disposed in 3 months

4) affidavit of service has to be filed of publication in newspapers

5)section 141 of code of civil procedure The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

The suggestion of your lawyer may take inordinate time because it is a round about route and may be successful or not.

The court may ask for proper provisions of law and it may even return the succession petition seeking clarification and maintainability.

In the absence of any defendant the declaratory suit may not take much time.

You may decide the next course based on the analysis you have made so far.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

it is better you consult a retired judge in your city .

2) get your mis case vetted by the retired judge and then file revision petition

3) succession certifcate is only for movable debts and securities

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

I had advised you that it is not necessary to file declaratory suit claiming as residual relative

Since tehsildar declined to carry out mutation of property on your name you have to approach court for issue of letters of administration as aunt died intestate

thecinherited property of issueless female goes back to the source

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

Your question contains your own interpretation of the existing laws in your favor.

I am afraid that your understanding of the law in this regard is incorrect,

If you still feel that you are right especially by quoting the provisions of law under reference, you can present your argument before court and await court's decision.

The opinion on actual position of law was properly explained, so now it is you who have to decide about further course of action in this regard.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

1) Tehsildar in his reply would take the plea that on demise of aunt intestate and issue less there was no legal heir hence he advised you to apply to court and obtain court orders for transfer of property in your name

2) tehsildar will give give a vague reply and take the plea that he will carry out mutation as per court orders

Ajay Sethi
Advocate, Mumbai
95217 Answers
7611 Consultations

5.0 on 5.0

When the court has sent summon or notice giving 60 days time to reply, what will be the reply/answer of Tahasildar, he has to explain court under what provision of law he can not issue legal heir certificate to CLASS II heir, which court sent the notice

How can a lawyer of this forum predict what anser the Tahsildar can give to the court or what he relies upon.

The Fact is that the Tahsildar is not the authority for issuing the class II legal heirship certificate, because they do not come under his purview of authority.

Therefore Tahsildar ca simply express before court that issuing a certificate containing the list of Class II legal heirs of the ceased is out of his jurisdiction/purview or he may come out with his own reasons.

The inherited poroperty goes back to source to my died uncle whoes relation i.e. elder brothers son who is class ii heir.Can court deny this provision of law or logic.

Dont twist the question to get an anser in your favor, the property may have different roots, but what is the preset status of the property.

Reportedly this property was transferred to your aunt by your uncle hence this becomes her property and now it will devolve on her own legal heirs and not back to the person who transferred it to her.

There is no law which can make the transferor/donor to cancel the the gift deed on his own nor the gift deed shall stand revoked upon the death of the donee.

Tahasildar being semi judicial authority, can deny the mutuation ofproperty in my name only when the land is dispute, he may refuse. But here no dispute and no claimant and aunty issueless, how can he rejected,whether he can reply with some disputes in land.Can he not again do mutuation in my name on the basis of CLASS II legal heir which is proved as per sec.8 (class ii heir iv(i))

Even by any remote provision of law, you cannot be held as a legal heir to the deceased aunt.

The law what you have referred if carefully read you will find that you do not fall under the said category.

You know the law properly which is involved in it, but you are bent upon to test the knowledge/skills of lawyer.

If there is no law permitting you to mutate the property on yo name, then the Tahsildar cannot do anything about it.

The question is not about any existing dispute in the proerty, but about the legality and legally valid act which can be applicable to this position to grant mutation even in the absence of any dispute.

What is stopping you from approaching court for obtaining proper reliefs as suggested and that would be a better option than to waste your precious time in repeating such irrelevant questions.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

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