: query 1. my father Mr Rao born on 1934, he was in Govt service, . married in 1962 2. in 1972 he bought a property in mysore : he took a loan of 25k, that was the property sale consideration . it was registered in my mothers name; my mother was a house wife. she did not have any source of income whatsoever. 3. At the same moment of purchase, a week later, my grandfather died, . his share of estate money came to my father IN 11 MONTHS TIME.. My father could repay the loan quickly. my father has 2 daughters ( both marrried ) and 1 son remaining myself . one my biological younger brother, has been given away in dattaka process : adoption . adoption deed has been registered in sub registrar office also. I am yet to marry . 4.. my father asserted always that the property that was bought ( even when it is in my mother name ) was hindu undivided family property; he pressed me to spend on that ; out of my respect towards him.. I have spent roughly 12 lacs towards repairs of the property, upkeep etc. 5..my father died on feb--2015., in this very house only, where i reside now. he died INTESTATE I reside , In that property now, due to the oral will of my father, that I am his heir. 6. my mother did not derive any benefit from the house like rent. etc. since we all stayed together only. the house tax was paid by my father only. 7 . pl advise me on : I need your opinion on ( I ) whether the property in question is Hindu undivided family property or my mothers absolute property ? (ii ) does it fit to benami property definition ? IN MANY PLATFORMS, MY MOTHER HAS ADMITTED THAT THE FULL SALE CONSIDERATION WAS PAID BY MY FATHER. THERE IS WRITTEN EVIDENCE FOR THAT ( iii ) whether I have a Right to reside there : like unfettered Right to residence in the House or not? as a legal heir to my mother ? or that I have spent 12 lacs on its upkeep etc ? or is it that , my residence there, can be only purely at her mercy ? ( iv ) my mother told me 20 days back that my ex brother : he is trying to get the property by settlement deed in his favour, : he is not a survivor for our family / he has a grip or undue influence over my mother; if it is family property, i HAVE TO stop her. if it is her absolute property, i will have to go away from the house; PL APPLY YOUR KIND MIND for a reply
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1. it is actually a benami property though until it si declared by court as such it would be treated as exclusive property of your mother only.
2. Since your mother has absolute title over this property, your stay in the said property like that of a licensee and nothing more.
3. Legally you can not stop your mother from transferring this property to anyone she chooses though you can try your luck y filing a suit for partition.
1. Since there is no proof of oral declaration and will it will be treated as absolute property of mother.
2. No under benami property then property on name of wife is exempted and not considered as benami property.
3. It is on merecy of mother ,mother can dispose property on her will.
4. See you should request your mother to make will in your favour as of now the property is absolute.
ok. thanks for your kind mind application. what should be the base pleading of the partition suit ? grounds
Sir.in my view partition suit is not maintainable here in as the property.is not ancestral and further mother is absolute owner.
1. your mother is absolute owner.
2.your mother is having absolute right to appoint any person as a legatee or beneficiary of a Will and legatee should execute the Will carefully and in accordance with the law.
No it's not absolutely your mothers property.
No it's not benami
Your father bought the house property in the name of your mother. Your father also took a loan on that property and it was paid by him. But the property is in your mother's name and she is alive and therefore she can transfer the property to you. In case she does not the property would be divided among the remaining siblings excluding the brother who was given in adoption.the property is not banani. You have right of residence.
Regards
You have to file suit for partition for division of property by metes and bounds
2) take plea that property bought in mother name for benefit of joint family
3) you have right to stay in said property
4) seek injunction restraining creation of third party rights by mother
Your plea should be property bought by father in mother name for benefit of joint family
enclose evidence that money paid by father
Dear Madam
You have every right to reside in the said property as it is inherited by your mother, brother and yourself, jointly. Each of you has 1/3rd share in it. You can file a suit for Partition and stay in the same house. Get Status quo order.
Section 8 of The Succession Act
. 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—
since the consideration was paid by your late father and property registered in name of your mother, the transaction will be hit by benami law
however the above restriction was not there prior to 1.11.16 when the benami law came to be amended
since the transaction happened prior to amendment of benami law, it will not be hit by benami law
such a transaction was allowed under subsection 2 of section 3. However the subsection came to be deleted by the amendment in november 2016
since transaction is prior to november 2016, it will fall under the subsection of section 3 which does not restrict such a transaction
under ss 2 of s.3 it is provided that a property bought by husband in his wife's name will be presumed that it was purchased for the wife's benefit, unless it is proved to the contrary
so if you contend that the property was actually a HUF then that will take away the property from the protection given to it against benami law in ss2 of s.3
so that may go against you
also it will be difficult to prove such an intention of your father that he intended that the property should be considered HUF though purchased and registered in his wife's name
so considering that the property now standing in your mother's name is not hit by benami law, then it becomes her self acquired property and she can do whatever she deems fit with it
upon demise of your mother, the property will go to her parents and children. Children will not include the son who was given in adoption. The devolution in favour of legal heirs will happen provided mother had not transferred the property in her lifetime or has made a Will for the same
Even though your father funded for the purchase of this property since he bought the property on your mother's name, it becomes her own and absolute property.
The property on your mother's name cannot become HUF property
In this property nobody has any right except your mother.
She can dispose the property in any manner and to anyone of her choice, no one dispute her decision or authority over the property.
Now you can decide about further course of any legal action on it.
No idea that on what basis somebody suggested you to file a partition suit, in my opinion it may not be maintainable.
You can consult with a local advocate before moving on.
