It will be partially invalid for the properties that were in name of the mother and those that were the ancestreal property.
File a partition suit to claim the share in your property.
Regards
Settlement deed executed by father
Our mother expired in 2004. Father expired in 2017. We are two daughters and one son for them. Mother did not leave any will at the time of her death. Father executed a settlement deed in 2014 by writing all the properties to our brother. The deed contains 15 properties belonging to our father (Few ancestral and few self acquired) and one property jointly purchased in the name of both father and mother. As father has no right to gift/settle the mother's property, whether this settlement deed will be valid, invalid or partially valid. Kindly advice
Asked 5 years ago in Property Law
Religion: Christian
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11 Answers
It is partially invalid in my considered opinion. Justice M.H. Beg drew a distinction between wholly and partially valid documents rather succinctly and eloquently in Gorakh Nath Dube vs Hari Narain Singh & Ors 1974 SCR (1) 339: “We think that a distinctioncan be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid.”
What you are describing is an instance of alienation in excess of power to transfer, and the deed conveying the properties is therefore invalid pro tanto (to the extent of excess).
I hope that answers your question. Further queries welcome.
I must add that your father (being the widower) was entitled to a share in the property left behind by your mother as well along with the three of you. This is as per the Indian Succession Act.
Father could not have executed settlement deed for entire property in favour of son
2) st most he could have transferred only his share in favour of son
3) file suit of partition to claim your share in property and to set aside settlement deed
4) there is no concept of ancestral property among Christians
1) The will and gift made by the your father is valid to the extent of his share only. your father cannot make will for entire ancestral property.
2) The Supreme Court has held that daughters who were born before the enactment of Hindu Succession Act 1956 are entitled to equal shares as son in ancestral property.
3) If your mother has passed away without any Will then her assets will be distributed as per Hindu Succession Act which clearly states that in absence of Will the property is divided equally among the legal heirs. So in your situation your father and your brother along with you
( daughter) have an equal right over your mother asset. So transferring the entire asset without your consent in my view is not right. Ideally the gram panchayat should have asked for a Will or a succession certificate if there is no Will. Without a succession certificate any asset cannot be given to any legal heir
You can file Partition Suit ,
A partition suit is a court case filed when all the owners do not agree to the terms of property division, and one or more co-owners want to divide the property according to their shares. A suit for partition is filed in the court which has jurisdiction over the area in which the property is located.
It is invalid. He can only settle his share. He cannot even settle the share in his ancestral property. You both can claim right in your mother's property as well as your father's ancestral property.
The settlement deed in respect of the properties under his name, whether self acquired or inherited, shall be valid.
However the properties that were jointly owned, he can execute a registered settlement in respect of his half share and the one third share that his entitled in the half share of his spouse as a widower. The balance 2/3rd share of your deceased mother's share in the proeprty shall devolve equally on all her three children, i.e., you and your siblings.
However the settlement deed shall be invalid in respect of that extent of property alone. to the share of the property which your father was not entitled.
Deed is valid up to his proprieties. No authority to settle Mother share in him.
Were all the legal heirs of mother signatories to the settlement deed executed by father? If they were not then the legal heirs whose shares have been wiped out or curtailed are at liberty to file a suit for partition and also seek a declaration that settlement deed is illegal and void.
The settlement can be said to be partially valid as per the mothers property is concern the father has no right to transfer same in her share all including father brother and you will have equal share. Further as far as the ancestral property is considered there nature has to be ascertained as they were inherited after partition or hindu joint family.
