hello sir/ maam
u have a good case. in case society deny to transfer the flat, u have to approach court where u will definitely win
Property inheritance: Will vs adopted minor child's rights
Hi - we have a property in Ghatkopar, Mumbai. It is currently co-owned by Smritidevi (deceased) and Mahesh (grandson) - 50%-50% each. The property was self-acquired by Smritidevi's husband. He had Willed it to Smritidevi and Mahesh. Smritidevi had 3 children: Samarthkumar, Bhavesh, Kaavya. Mahesh is Samarthkumar's son. Bhavesh died in 1990. His wife was Manisha and they had a daughter (Trishla). After Bhavesh's death, Manisha remarried, and their minor daughter, Trishla, was adopted by the new father. Smritidevi died last year. She had Willed her share to Samarthkumar, also, Samarthkumar is also the nominee on file. We submitted a request to the society to transfer the flat to Samarthkumar based on the Will, nomination and No Objection (NOC) letter from Kaavya. Society is now asking for NOCs from Trishla. The Will is not registered. Questions: 1. Does Trishla (biological granddaughter of Smritidevi) have any right to the property? Property was self-acquired by their Smritidevi's husband. Note that Trishla was adopted as a minor when their mother remarried after Smritidevi's son's death (Bhavesh). 2. Can the society block the transfer asking for NOCs from the adopted daughter? 3. What documents do we need to give to the society to transfer the flat with property rights to Samarthkumar?
Asked 6 years ago in Property Law
Religion: Hindu
11 Answers
1) you should apply for probate of will .
2) NOC from grand daughter is not required . had grand mother not left will wife and daughter could have claimed her deceased father share in property
3) society should transfer flat in name of nominee . but in many cases society insists on probate of will
4) nominee is only trustee for legal heirs . enclose grand mother death certificate , copy of nomination form accepted by society
Smrithidevi got the property through her husband under a will, which is her husband self acquired property..so the property is to be treated as her own property as such right over the property transfers to her son samartkumar as per her will.. hence no other successor of smrithidevi will have any right over the property except samartkumar.... Hence any objection from the society will not sustain
Just produce the will document and claim the share of smrithidevi to be transferred to samartkumar
1. Since Trishla being the class-I legal heir is entitle to her due share in the estate of Smritidevi.
2. however that is so if she died intestate. In this case she made testamentary succession . Since it is her self acquired property she can dispose of this property to any one she chooses and she has in this case made Will which is valid and enforceable.
3. So the demand of the society for NOC has no legal standing or basis and the same is unfounded and without any legal basis.
4. The issue here is not her adoption which is not a restraint but testamentary succession of property of Smritidevi which holds good.
Dear Client,
First of all, probate is mandatory in Mumbai, and acquisition of ownership by virtue of WILL is not confirmed until probated by court.
After adoption, Trisla has no claim in her father`s property and remarriage do not cease wife`s inheritance right in deceased husband property.
50% property is of mahesh by virtue of WILL. and rest 50% Smritidevi bequeath to Samarthkumar, now where`s the need for NOC arise from Trishla or any one.
Property is jointly owned now by Samarthkumar & Mahesh . All other heirs are disinherited.
1. Does Trishla (biological granddaughter of Smritidevi) have any right to the property? Property was self-acquired by their Smritidevi's husband. Note that Trishla was adopted as a minor when their mother remarried after Smritidevi's son's death (Bhavesh). ---- Sec 12 Hindu Adoption act, she has no claim.
2. Can the society block the transfer asking for NOCs from the adopted daughter? ---- NO
3. What documents do we need to give to the society to transfer the flat with property rights to Samarthkumar? -- Probate.
1. Trisha, the biological daughter of Bhavesh, has no right on the said share of the property after she has been adopted by her adopting father.However, it is to be kept in mind that ordinarily a will shall have to be adopted unless the property is located at places where probate of will is not required viz. N.Delhi.Without the granr of probate, a will has no value more than a scrap paper. If grant of probate of the will of Smritidevi in favour of Shantakumar is obtained from the Court, no Society will ask an question in connection with the will and ownership of the said property by Shantakumar.
2. Society can ask for the probate of the will to be granted by the Court. Society is not a Court to decide on the title or inheritance of the property of its members and shall have to act as per court order. However, as explained above, Trisha will have no right, title and interest on the said property after her adoption.
3. Just the only document i.e. the grant of probate of the will of late Smritidevi shall have to be submitted to legally7 claim her share of the property by Shantakumar.
1. trishla does not have any right in the property, but the NOC is required so that in future she does not challenge the will. Trishla does not have right because it is a self acquired property, otherwise she would have full right on the property.
2. Yes the society can stop the transfer on this basis.
3. NOC from all the legal heirs, death certificate and if NOC of Trishla is not available then obtain a succession certificate.
regards
The grand daughter if legal heir of the said property, noc of the same will be required. You can ask the society under what provision they are blocking the same. Generally in self acquired properties if there is specific will to the person the question of other members who are not named doesnt arise. Sometimes society just to be over protective demands many things which are not required under Provisions of law
No she doesn’t have any right.
Second question doesn’t stand in the light of first wuestion’s answwr in NO.
Death certificate plus the copy of the Will and legal heir certificate.
1. Trishla is the daughter and one of the class I legal heirs of the deceased son Bhavesh.
The deceased was one of the class I legal heirs of the deceased SmritiDevi.
Though she has been adopted by her step father, the society may insist on her NOC so that she cannot claim any rights in it at a later stage if she returns to the original parents' side.
2. The society may not go into the details of her adoption by her step father etc. They want to play safe game so that if there is any claim from hr side at a later stage this NOC may protect their interests.
3. The society can transfer only the shares of the property to the proposed legal heir, whereas the transfer of property through registrar is to be done for actual and effective transfer of the immovable property by ll the legal heirs including the grandson Mahesh have to execute a registered release deed in favor of the beneficiary relinquishing their rights in his favor.
1. Property is NOT "ancestral" and the share of "Smritidevi" belongs to her absolutely, without any claim from anybody and Smritidevi can Gift /Transfer her share to anybody, including NGO's, Trusts, etc....
2. Smritidevi, is entitled to Will /Gift /Transfer her share without any further reference or claim from ANY legal heir.
3. Society CANNOT block transfer of membership, except for a Court Order. Form no. 4, 23,, Membership Entrance Fees (100), Membership Transfer Fees (500) are payable, for transfer within family members.
Keep Smiling .... Hemant Agarwal