There is a property which has been built (1936) by my great grandfather in West Bengal. He died in 1948 and he made a WILL wherein he passed on the future rights of the property to his 4 grandsons (including my father) who were born by then. There were grand-daughters (my aunts) as well but nothing was mentioned for them in his will. After 1948, 2 more grandsons were born and 3 granddaughters. Now my grandfather died in 1989 and he did not make any will. Although, my fathers are 6 brothers and 6 sisters, in the will of my great grandfather property was given to only first 4 son. Now, we are planning to sell off this property. The queries are: 1. Does my 6 aunts have any share in this property? 2. Does my 2 uncles who born after the death of my great grandfather has any rights in the property? Thanks Rajiv
1) was probate obtained of the will please clarify
2) on the demise of great grand father was mutation of property done in favour of the beneficiaries ie grandsons
3) in some cities like Bombay , Calcutta , madras probate is mandatory . Probate is judicial proof that will is genuine
4) in absence of probate the grand daughters and grandsons would have share in property
1. If the will made by your great grandfather has a specific mention of the property vesting in only those grandsons who were born during his lifetime then the grandchildren born after his demise do not get any share in the property.
2. I hope the will has been probated as in the absence of probate the will is nothing but scrap paper.
I think there was some mistake in my initial question. Instead of WILL, he did a Deed of Settlement giving the property rights to the 4 grandson. The mutation of the property was done in the name of my grandfather who expired in 1988.
1. There is a lot of difference between how a will and settlement deed is executed. The manner of creation of rights by these two documents is also different. If it is a will then it should be got probated.
2. Has the deed of settlement been signed by witnesses? Is it executed on stamp paper?
3. When the property had been given to 4 grandsons then why was mutation carried out in the name of your grandfather alone? Has the mutation not been challenged? It can be challenged at anytime now. It will be wise on your part to recognize the rights of the other grandchildren of your great grandfather and cure the legal infirmity in the mutation so that the rights created by the deed can be enjoyed without legal hassles.
1) it is necessary to peruse deed of family settlement
2) was it duly stamped and regd ? Please clarify
3) on basis of deed of family settlement property has been mutated in favour of the grandsons
4)on demise of your grandfather property woul devolve on his legal heirs as he died intestate
5) for sale of property consent of aunts would be necessary
A settlement deed immediately stands to have conveyed the rights and titles toa property as opposed to a will which comes into force only after a probate is granted after the death of the Testator(Maker of the will). So all the property mentioned under the deed of Settlement stands to have transferred Title and no other person can contest any right to any property enumerated under the Deed of Settlement as long as the Mutation and/or other procedural formalities regarding transfer of the Title has been completed.
If such Title has not been transferred the other parties may stake a claim to it and claim the rights accrued under the settlement deed to be a right barred by limitation.
What is the current status of such property? Who holds the Titles to such property?
The Deed of Settlement was signed by the witnesses and it was registered. The property mutation was done in the name of the grandfather as it was specifically stated in the deed that all the grandsons are minor and my grandfather will continue as caretaker as long as he is alive. The property mutation name has not been changed till now as there has been no partition filed till now by us and the need was not felt.
The property will devolve upon all heirs of your grandfather since he was the title holder before death and he has not left specific bequests to anyone. So such property will be equally shared between your father and his siblings and others as mentioned in the class of heirs under Hindu Succession Act
The following is a chart that will help you understand the number of heirs and the priority of succession enjoyed by them. Since I Do not have the entire family tree you might find the following chart helpful in determining who all can claim a stake to the property. Please note that even though I am putting up an elaborate chart you would probably find all your answers within the first class itself since according to you, your grandfather died with many heirs in the class I of heirs alive.
Heirs of a Hindu Male
The heirs of Hindu male fall under the following categories:-
1) Class I heirs,
2) Class II heirs,
3) Agnates,
4) Cognates, and
5) Government.
Class I heirs:-
The property of a Hindu Male dying intestate would be given first to heirs within Class I. They are:
i. Mother,
ii. Widow,
iii. Daughter,
iv. Son,
v. Widow of a predeceased son,
vi. Son of a predeceased son,
vii. Daughter of a predeceased son,
viii. Widow of a predeceased son of a predeceased son,
ix. Daughter of a predeceased son of a predeceased son,
x. Son of a predeceased son of a predeceased son,
xi. Daughter of a predeceased daughter, and
xii. Son of a predeceased daughter.
Some new heirs are added by Hindu Succession (Amendment) Act, 2005. They are:
i. Son of a predeceased daughter of a predeceased daughter,
ii. Daughter of a predeceased daughter of a predeceased daughter,
iii. Daughter of a predeceased son of a predeceased daughter, and
iv. Daughter of a predeceased daughter of a predeceased son.
Shares of Class I heirs :
Section 10, Hindu Succession Act deals with the distribution of the property of the propositus, among class I heirs. The rules are:
A.] Sons, daughters and the mother of the propositus each take one share.
For example:-
If ‘P’ dies leaving behind his Mother ‘M’, two sons S1 and S2 and two
Daughters D1 and D2, each of the above heirs will take one share, i.e., 1/5th
-‘M’ will take 1/5th ;
- D1 and D2 each will also take 1/5th &
- S1 and S2 each will take one fifth.
B.] Widow takes1 share. If there are more than one widow, all of them together take one
Share and among themselves they divide it equally.
For example:-
‘P’ dies leaving behind a widow, ‘W’ and three daughters ‘D’, ‘D1’, and
‘D2’. Here each will take one share, i.e. 1/4th to each.
-‘W’ will take 1/4th,
-‘D’, ‘D1’ &‘D2’ each will take 1/4th .
C.] Among the heirs of the branches of a predeceased son, son of a predeceased son of a
Predeceased son and predeceased daughter, so here the doctrine of representation applies
i.e. heirs in each branch would take the same share which their parent would have taken.
So, we see above three rules in the following example:
If ‘P’ dies leaving behind son ‘S’, widow of a predeceased son ‘S1’, ‘SW’,
Predeceased daughter’s son and daughter ‘DS’ and ‘DD’, predeceased son’s
Predeceased son’s widow ‘SSW’, his daughter ‘SSD’ and his son ‘SSS’.
Distribution is first to be made at a place where branches come into existence.
There are four branches, each will take 1/4th share i.e.
- ‘S’ will take 1/4th .In the branch of ‘S1’ there is only one heir ‘SW’, she
representing ‘S1’ will take 1/4th .
- In the branch of predeceased daughter, there are two heirs, they representing her
will take 1/4th and between themselves divide it equally, with result that ‘DS’
will take 1/8th and ‘DD’ will take 1/8th .
- In the branch of predeceased grandson, there are three heirs, representing him
they will take 1/4th & among themselves share it equally, with the result that
‘SSW’, ‘SSD’&‘SSS’ each will take 1/12th.
Class II heirs and their shares:
If there are no heirs in Class I, the property will given to the heirs within Class II. They are divided into nine categories. The rule is that an heir in an earlier category excludes heirs in later category. Further all heirs in one category take simultaneously per capita share. They are as follows:
1] Category I -
a) Father.
2] Category II -
a) Son’s daughter’s son.
b) Son’s daughter’s daughter.
c) Brother.
d) Sister.
3] Category III -
a) Daughter’s son’s son.
b) Daughter’s son’s daughter.
c) Daughter’s daughter’s son.
d) Daughter’s daughter’s daughter.
4] Category IV -
a) Brother’s son.
b) Brother’s daughter.
c) Sister’s son.
d) Sister’s daughter.
5] Category V -
a) Father’s father.
b) Father’s mother.
6] Category VI -
a) Father’s widow. [Step mother].
b) Brother’s widow.
7] Category VII -
a) Father’s brother.
b) Father’s sister.
8] Category VIII -
a) Mother’s father.
b) Mother’s mother.
9] Category IX –
a) Mother’s brother.
b) Mother’s sister.
1. What is the date of mutation? Appointment as caretaker has no correlation with proprietary rights which have been inherited. Under no circumstances he could have continued as their caretaker once they attained majority.
2. If at the time of mutation being done the other 3 grandsons were minors then the mutation should have been carried out when they attained majority.
3. You have not mentioned whether the deed has been made on stamp paper.
4. The mutation should be carried out to reflect the names of all the 4 grandsons who were given the property so that it does not suffer a future challenge in the court.
1) I n case of deed of settlement was duly stamped and regd grandsons would be the owners of the property
2) consent of aunts and other grandsons would not be necessary for sale of property
1. The property has been willed by your great grandfather to his four loving grandsons,
2. The said 4 grandsons of your great grandfather, including your fater, are the absolute owners of the said property and you aunts and anybody else has no right on the said property,
3. On the same logic, the unborn Uncles also have no right on the said property.
1. Your great grandfather has settled his property amongst his 4 grandsona,
2. So, they are the absolute owners of the said property.
1. The settlement deed is perfectly valid and the settlees are the owners of the said property,
2. The said owners now should mutate their names in the said property,
3. A partition suit can be executed and registered by all the 4 owners to divide the property by metes and bounds.
1. Since the deed of settlement is duly stamped and was signed by the independent witnesses and registered, then the property would devolve as per the contents of the WILL to the beneficiaries.
2. However other left out beneficiaries may challenge the settlement deed itself by alleging that the settlement deed was made under coercion and undue influence on the testator.
The 4 grand son are the absolute owners of the whole property of your great grand father .The share of the property is divided them as per the shares allotted in settlement deed.When the 4 grand son's are major they have the right to alienate the property. The six aunt have no right of share in that property .2 more grandsons also have no right of share in that property.
After the demise of your grand father ;his legal heirs has right over the share which owned and possessed by your grand father.You can sell only your grand fathers share in that property. if wish to sell whole then you need have other 3 grand sons legal heirs;if they are not alive.
Hi, when the deed of settlement was done by your great grandfather then if you want to sold the property then signature and consent of the remaining does not arise.
