• Claim of self-acquired property

Sir,
My father had a sel acquired land in Bangalore.We are 3 sons and 2 daughters. Last year the property was partitioned in 3 parts -My father,myself and my brother...as my eldest brother and 2 sisters have their own property,this was done..Thereafter we entered into a JD with a builder and the property was developed to 6 flats now..after this my father expired last year and his portion is transfereed to my mother with katha etc.now, When the builder is trying to sell his portion of 3 flats the bankers are asking for a no objection from my sisters because they say that in future they might claim their share of father's property...My contention is that it is already partitioned and even if there is an objection ( which is not there ) it could be a claim of only our share of the 3 houses which we shall share if at all there will be claims..are we to do this formality for the builders share?
PLs clarify...Thanks
Asked 1 year ago in Family Law from Bengaluru, Karnataka
Religion: Hindu
1. Well when the property was partitioned then your father had 1/3rd share in it along with you and your brother.

2. You are silent whether your father at the time of his death made any Will or any other bequest in respect of hs 1/3rd share.

3. If no then his 1/3rd share is to be equally divided among all his legal heirs which include you, your 2 brothers and 2 sisters and your mother.

4. Accordingly your sisters and left out brothers acquired 1/12 share in the property and hence it would be natural for the bank to ask for NOC from them.

5. If before death of your father he transfer his share to your mother through a gift deed then only the sisters or brother can be restrained from claiming their share.
Devajyoti Barman
Advocate, Kolkata
5169 Answers
54 Consultations
4.9 on 5.0
Hello,
1) When the property is self acquired and if the person dies intestate the property will devolve equally on all legal heirs.

2) As your father had partitioned the property in three shares during his life time the only bone of contention would be the portion in his name that subsequent to his death was transferred on your mother's name. Although the transfer was done the right of the heirs remain open. All of you siblings and your mother have equal share in the said portion. This is the logic behind the bank seeking NOC from other heirs.

3) When your father made the partition of the property, I presume there was a transfer and that was duly stamped and registered on your respective names. Of that is the case you will need to get NOC only for flats  on the builder's share or built on father's share. The bank is seeking indemnity as it wants to be insulated against any possible future claims.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1) as per deed of partition executed by your father he had 1/3d share in property . 

2) on your father demise his 1/3rd share in property would devolve on all his legal heirs namely wife , sons , daughters . 

3) bank is justified in seeking NOC from your sisters . as they can always claim share in your father share of property 

4) in order to be on safer side your sisters should execute relinquishment deed or gift deed for their share in property .
Ajay Sethi
Advocate, Mumbai
23142 Answers
1215 Consultations
5.0 on 5.0
1. At the outset the land was self acquired by your father which he partitioned amongst himself and two of his sons and for this he need not take any NOC from his daughters,

2. The development agreement of this partitioned property was signed by all the title holders of the property being your father and two of your brothers wherein all three of you will get one flat each and the builder will get 3 flats which he can sell off,

3. After the demise of your father all his legal heirs has right on his property being one flat in the said building and not on any of the 3 flats which comes under developers allocation,

4. The banker is not justified in asking NOC from your sisters for giving loan to the buyers of the developer's share of 3 flats.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1. According to the partition deed that was executed, the property was divided between your father, brother and yourself, which means that each of the three had a 1/3rd share in the property.

2. Since the property in question was the self acquired property of your father he was at liberty during his life time to make any instrument of disposition of property and distribute his property in the manner he desired. Consequently, your sisters and brother, who were not given any share in the property, have no right to claim a share now. In this view of the matter, no NOC is required from your sisters.

3. However, if your father did not leave behind a will as to his share in the property then his widow and all his children succeeded equally to his share. The daughters can enforce their share by moving to court and filing for partition.

4. It is prudent on the part of the bank to have asked you for a NOC from your sisters in so far as your sisters also have an indefeasible share in the property.

5. You can either purchase the share of your sisters or enter into a family settlement with them.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
Hi, the property in question is self acquired property of your father and during his life time property was partitioned.

2. After his demise his share was fallen to your mother and now your father share all the legal heirs of your father has right. 

3.Though you have entered into joint development agreement with builder as there is undivided share in the property which your sisters has right over the property so your sisters no objection is very much required.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1) bankers tend to play safe . 

2) you are correct in your reasoning that sisters can claim only share from one flat ie your father share 

3) bank apprehends that in case your sisters move court and obtain an injunction order the whole property would be stuck in litigation and affect their chances of recovery of the money advanced as loan
Ajay Sethi
Advocate, Mumbai
23142 Answers
1215 Consultations
5.0 on 5.0
1. As I have opined in my earlier post, the Banker has crossed its brief in asking for NOC from the sisters which are not required at all since the said sisters have no share on the developers share of 3 flats,

2. The agreement with the developer was entered into by all three title holders of three partitioned property including your father during the life time of your father,

3. As per the said agreement the developer will get share of three flats the building coomprising of 6 flats our of which one flat each will be shared by each title holder of tha pieces of land,

4. Now, the NOC demanded by the Bank will relate to which property/flat? They have no share on the falts falling under developers allocation. So, how can they give NOC for flats over which they have no claim/share/title?

5. Convince the Bank from logical point of view.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Hello,
1) As posted earlier the banker is only trying to get indemnified against any possible claims made by the legal heirs.

2) If all that the banker requires is an NOC from sisters it would be safe to provide it to avoid an impediment as the banker's fear would be around parties not involved in the JD (sisters) coming up with with any future claim that can encumber the property and create hassles in the interest of the banker.

3) It would be easier to provide NOC rather than convincing the banker of the legalities, as legally the sisters don't need to give NOC.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
It being your father's self acquired property which has been divided during your father's life time wherein father along with his two sons entered into a JDA with a builder for construction of 6 flats,subsequently father died and his share of one flat was transferred to his wife(your mother) and in that flat only you and your siblings have equal right due to the reason of intestate property of your father,therefore question of NOC arises at the time of disposal of the said flat which now your mother possesses.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0

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