• Legal advice on inherited property

My Grandfather (Died 1977), had a self earned property (dwelling house).
My grandfather had four children (2 sons and 2 daughters). At the time
of his death, only 2 children were alive (my father and my aunt) apart
from my grandmother.
After my grandfather's death,the said house has been transferred to my
father's name (1979) after the consent of my grandmother and the aunt as per the will of grandfather (Dying statement, not registered). Also as per the will, my aunt claimed my grandfathers job on compensatory ground, she has retired last year after serving 39 years.
My father later settled in Delhi, and my aunt, my grandmother and the
son of my other deceased aunt were living in the said property.
My father died in 1994, and after his death my grandmother showed my mother the grandfathers will and asked us to take the ownership, which she did not at that point of time and now we have got the property transferred
to my mothers name.
Now my grandmother is also no more and my aunt has the custody of that will and she has refused to provide us the will copy.
Currently my aunt (unmarried) and the son of my other deceased aunt
are still living in the said property.

Need you help in clarifying few doubts hence ascertain future course
of action, so we can occupy/sell the property as desired.

1). Do my Unmarried Aunt has any share in property as it was already
transferred to my father in 1979, and no claim has been made till now for almost 40 years by her. She has appealed in court for stay order to stop us from selling the house and divide the property with her share being 50%.
2). Do the son of  my other deceased aunt has any share in the property.
3). Can my aunt adopt the son of my other deceased aunt and claim any part.
4). How should we go legally about the case
Asked 1 year ago in Civil Law from Allahabad, Uttar Pradesh
1. You have not mentioned about he document through which the property has been transferred in he name of your mother. Is it a settlement deed? Has it been registered? Has the ownership been mutated in the name of your mother? If the answer to the above questions are affirmative, then your Aunt, or any body else for that matter, will have no claim on the said property,

2. If the Title of the  property   has been registered in the name of your mother hen no body will have any claim on it,

3. Nobody will have any claim as clarified above,

4. Get the copy of the registered deed of conveyance through which the Title of the  said property has been transferred in in the name of your mother, and contest the case filed against her with he said property document.

Krishna Kishore Ganguly
Advocate, Kolkata
12127 Answers
233 Consultations
5.0 on 5.0
HELLO,
1) In the absence of a Will by your grandfather, despite the property being transferred in your father's name your aunt can claim a share in the property.Therefore the burden to prove that the property was transferred in your father's name by the express consent of all will be upon you. Besides this you need to obtain a copy of the said Will to substantiate your claim of the Will of GF.

2) The son of the deceased aunt of yours has a share in the property too.  

3) Should there be a dispute he can himself stake his claim or alternately your aunt can adopt him and with the adoption his share too will go to her.

4) As your aunt has already filed a case in the court for partition and got an injunction against alienation of property you need to defend the case.You need to show proof of all your claims.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1. If your grandfather had made a will during his lifetime the same would take effect after his demise. The will of your grandfather will prevail over any other instrument of transfer of property which had been made after his demise. 

2. Unless your aunt can prove that she is a shareholder according to the will of her father she is not entitled to a share in the property, more so in view of the fact that she had consented to the transfer of the same to your father.

3. The children of deceased aunt have a share in the property unless the will provides for the contrary,

4. Engage a lawyer to contest the case on merits lest she walks away with a stay order in her favour and also a share in the property.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1) aunt would not have any share in property which has been transferred in your father name in 1979 

2) it is necessary to produce the will of your grandfather in this regard 

3) son of predeceased aunt would not have share as per will of your grandfather 

4) your aunt can adopt son of predeceased aunt if she so desires 

5) if you are not able to produce the will of grand father your aunt , son of predeceased aunt would be able to claim share in property 
Ajay Sethi
Advocate, Mumbai
23325 Answers
1220 Consultations
5.0 on 5.0
The property originally belonged to your grandfather and incidentally it was his self acquired property.Though your grandfather is reported to have given a dying declaration that the property shall be inherited by your father, this being not a will, it cannot be considered as a legal act by your father to acquire the entire property on that basis, his acquisition is illegal and invalid in law. 
Your grandfather was blessed with four children however on his death only two were surviving, but there is no mention about the status of the deceased children i.e., whether they both were married and were survived by their legal heirs during at the time of their death.Assuming that one of the child was married and was survived by legal heirs, and the surviving legal heir is the son presently residing with the unmarried aunt, In the given situation the property acquired by your father is liable to be divided into four shares which will,include besides your father, your grandmother, your unmarried aunt and the son of the deceased aunt. 
If the property was transferred on your father's name by a registered document acting on the so called will (which can be treated as unregistered family settlement or on the basis of mutually agreed oral settlement),then the claim by your aunt or her nephew may not maintainable in law.  Especially you can fight it out on the grounds that since on a mutually agreed terms the aunt was given the privilege of grandfather's compassionate grounds employment, your father was was given the property as a compensation in lieu.   This is how you can tackle the issue at present.

All your subsequent questions have been answered in the above lines. 
T Kalaiselvan
Advocate, Vellore
14122 Answers
127 Consultations
5.0 on 5.0
Can she ask the court for the division of property if she wants and we don't.
You cannot stop her from going ahead with her plans to file a partition suit. 



Can she will this property to anyone if we continue to have joint ownership.
It is her own choice to execute a will for her undivided share in the property.


What will happen after her death as she is unmarried, who will be her legal heirs in this case. Have read that in that case, her father, i.e my grandfathers legal heirs will have the claim, which are we.
You are right, in the absence of class I legal heirs or class II legal heirs, the property  will revert to her father side and his legal heirs shall acquire the same. 



What should be more beneficial for us to go about, i.e whether to get the division or let the property be as it till the time she is there, as we are not in any need to sell or dispose the property or to fight her claim basis the circumstantial facts and proofs we have
You do not initiate any legal process for the present, wait and watch the developments, if she files any suit, you may challenge it on the basis of merits in your side. 
T Kalaiselvan
Advocate, Vellore
14122 Answers
127 Consultations
5.0 on 5.0

1. Any legal heir, who has a fluctuating or determined share in the property, can file a lawsuit for partition to cull out his share in the property even if other legal heirs are not ready for partition of the property. The majority of legal heirs are not permitted to gang up to defeat the right of the heir who conveys his intention to take out his share in the undivided property.

2. After her death her surviving siblings or their children, as the case may be, will be her heirs.

3. It is in your interest to enter into a family settlement to divide the property once and for all.

Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1) aunt can file suit for partition to claim her share in property even without your consent 

2) she can bequeath her share to whom soever she desires 

3) on aunt death her property would devolve on her brother and sisters 

4) reach an amicable settlement with her . file consent terms in court that as long as she is alive she would have right to stay in said property 
Ajay Sethi
Advocate, Mumbai
23325 Answers
1220 Consultations
5.0 on 5.0
1. In the stated event, the property will be equally owned by all the legal heirs of the title holder of the property,

2. Yes, she can file a partition suit claiming her share of the property,

3. In the event of her demise, her legal heirs will inherit her share of the said property,

4. Yes, your grandfather's (i.e. the actual Title holder's) legal heirs will inherit his property,

5. File partition suit if others are not willing to execute a partition deed.
Krishna Kishore Ganguly
Advocate, Kolkata
12127 Answers
233 Consultations
5.0 on 5.0

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