• Parent's property to son and daughter

Respected Lawyers,

I request your kind inputs & opinion on the following to clarify our questions.

My Mother is a resident of Kakinada city (Andhra Pradesh). She is Hindu and was married in 1982 and She is a Widow now . My Grandfather has Two Sons & Only one daugher ( My mother). My Grandfather expired 15 years ago & My grandmother expired 6 years ago. There is a Building of around 500 sq yards property with two commercial shop in the same building

Lately in 2014 a year after my grandmother expired, my Elder uncle ( Elder brother of my mother) took over the property and started collecting the rental amount from the building. In this process, he kept my Younger uncle (second son of my grandfather) and my Mother outside this process without involving them. 

In the same process, he claimed a document with my grandfather's signature as if the property is his own and allegedly put it for sale. But the fact is there is no such document or will that my Grandmother or Grandfather have ever created and its a fake. So, my Younger Uncle decided to fight in court of low. He filed a petition against my Elder uncle in the court of law and asked my mother to join. Since, my mother felt she will not fight the case. Hence, the court deemed her Exparte.

However, because my mother have claimed that his father & Mother wanted to give a share in their property, She still wanted to claim what is rightly belongs to her. Hence, Although she decided not to fight int he court, She wrote a written statement to Magistrate of court, that there is no Property document or will of her father and she requested court to consider her as part of Justice decision, whatever will be rightly belong to her in property and will rightly obilige.

The court still is continuing the case so far.

My questions in this context is

1. Is legally my mother can have rightful share as per law ?
2. My mother considering her Health and Financial status don't want to fight the case. So she remained exparte and Wrote a written statement which is registerd by court. I know, this statement doesn't have any value, but will that be considerd as part of judgement and Is it possible that hte Court can call her directly as witness ?
3. What are your personal opinion or suggestions in going forward on this case ?

Thanks to all in advance sir.
Asked 4 years ago in Property Law
Religion: Hindu

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10 Answers

Your mother had share in property

3) she should take out notice of motion for setting aside exparte order

3) she should give evidence in the case

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

Dear Client,

Your mother has 1/3rd share in property and to get sahre through court, she will have to attend court hearing or execute POA in your favor so that you can represent her. Writing such letter to magistrate has no value, have to fight suit properly.

Appoint some advocate, file application for set aside ex parte decree and claim partition and cancellation of sale.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The Married daughter have equal right in the parental property after the advent of amendment in Hindu Succession Act 1956, that came into force since 9th sept 2005..

fathers died before amendment in Hindu Succession Act have no right to inheritance

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

1. Yes your mother has 1/3 share in the total property of your grand father and grand mother if the document is fake and fabricated.

2. WS has the value as if the document is considered fake in that event according to law of succession she will have her rightful share even though she does not contest. Further yes she can give an affidavit.

3. if the document is clearly fake and not registered pursue the case you got 1/3 right here in the property.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

hello

your mother has a rightful share in the property and she should move forward and secure the property for her future generations. she has given a letter and has clearly stated that she is one of the legal heirs and therefore the court shall allow her a share in the partition suit.

she hasn't relinquished her share and hence she will get her share.

regards

Rahul Mishra
Advocate, Lucknow
13762 Answers
65 Consultations

5.0 on 5.0

1.& 2. What is the meaning of of statement "Hence the Court deemed her ex-parte"? Has the Court passed order that the case filed by your second uncle making your first uncle and mother as parties will be heard ex-parte for your mother since she is not appearing before the court? How such order was passed then she had submitted her Written Statement in connection with the said case? Or the fact is that she has not submitted it but sent it by post which is of no use. However, if he said order has been passed, then she should now file an application for vacating the said ex-parte order and submit her said Written Statement.

3. he should now file an application for vacating the ex-parte order and submit her written statement and stand in support of her 2nd brother to get the property partitioned by the Court by appointing Court Commissioner who will divide the property by metes and bounds.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

1) Instead of giving statement in court that she don't want fight in court but she want her rights in the property.

2) As per Hindu Succession Act your uncle and mother had equal rights in the property each one will get 1/3rd share i.e. 166.66 sq yards approximately.

3) Actually your mother should have joined the case with younger uncle.

4) Here you both have to prove that WILL is fake.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

If she is legal heir she will be entitled too the share else no. The will validity has to be proved in Court first. The degree of heir of your mother has to be seen including the genuineness of the will.

Prashant Nayak
Advocate, Mumbai
27291 Answers
88 Consultations

4.4 on 5.0

1. ALL the residual legal heirs of the deceased shall have EQUAL share in the deceased's property (i.e. Grand Mother or her Legal heirs, Both Brother and your Mother).

2. IF mother cannot attend court proceedings, THEN she can execute a Registered Power of Attorney in your favor and you may carry on and contest the case on behalf of mother. Property cases in Indian Courts take considerable time for any outcome.

3. Meanwhile Mother can file caveat with the Tahsildar's and Gram Panchayat /Municipal body, restraining them from making any further transfers of the deceased's property.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

1. Your mother is having a legitimate rights in the proeprty that belonged to her father, she can very well caim her share in the property.

2. She can power of attorney in your favor and you can represent your mother in the court, until she makes a claim in the suit she cannot get her share in the proeprty which has been disputed in the court.

3. She should file a petition to set aside the exparte order passed against her and should participate in the case.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

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