My Grandfather (Died 1977), had a property.
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) in municipality records , Dakhil Kharij (Not registered in court) after the consent of my grandmother and the aunt as per the the family settlement and hence my aunt claimed my grandfathers job on compensatory ground, she has retired last year after serving 39 years.
Now we have come to know that my grandfather had purchased that property by mortgaging our ancestral agricultural land to his brothers, and after his death, my father repaid the loan to his uncles (Grandfather's Brothers). Due to this reason, the family settlement was done to get my father's name on house records as he assured of payments which he did. In good faith my father didn't get the registry done in his name legally, as my aunt was supposed to marry and leave, hence they agreed to let her have the job for her future.
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 asked my mother to take the ownership, which she did not at that point of time and now we want to transfer the property to my mothers name.
Now my grandmother is also no more and currently my aunt (who remained unmarried) and the son of my other deceased aunt are still living in the said property.
Taking the advantage that, none of the party to that family settlement is alive apart from her, she is claiming to have the 50% right in the said property and wants to will away her part to the deceased aunt's son.
My father has paid the amount of loan taken by my grandfather after mortgaging our ancestral land, hence it should not be considered my grandfather's self earned property, hence please help in clarifying that do my Unmarried Aunt has any share in property as she had already
agreed to transfer the property to my father in 1979, and no claim has been made till now for almost 40 years by her. And after enjoying her part of the settlement of having served the Job for 39 years as gazetted officer, she is taking advantage of the absence of parties to settlement. She has appealed in court for stay order to stop us from selling the house and divide the property with her share being 50%.
How should we go legally about the case.
Asked 2 years ago in Property Law from Lucknow, Uttar Pradesh
1) on grand father and grandmother demise your father had one fourth share in property only
2) the share of predeceased brother and sister would devolve on their legal heirs
3) your aunt can claim her share in property as she never executed any deed of relinquishment
4) mere mutation in property records does not confer title to your father
5) claim of your aunt is not barred by limitation
You have not mentioned your Religion. Assuming that you are Hindus I give you my clarification, as per Hindu Succession Act.
I am sorry to say that your case is weak. Your father had voluntarily repaid the loan amount. The loan amount belongs to joint family. It is deemed in law that when your father himself voluntarily repaid the loan, it means that he did it for the welfare of the joint family. Hence, your father could not claim exclusively rights over the property. He can claim as if other members of the family.
Next point is your unmarried aunt had taken the job of your GF under companionate ground. At that time nobody of your family have objected. You have not even taken registered relinquishment deed (in lieu of job) saying that release her right in favour of your father or your mother or somebody the other family members chose. Nor you have entered into registered family settlement, nor atleast you have not taken an undertaking from your aunt. This aspect also gone.
You said that “my grandmother asked my mother to take the ownership, which she did not at that point of time and now we want to transfer the property to my mothers name”. But unfortunately, even your grand mother has no right over the property to get it transfer in your mother name or anybody name, since it is ancestral property.
You said that “Now we have come to know that my grandfather had purchased that property by mortgaging our ancestral agricultural land to his brothers, and after his death, my father repaid the loan to his uncles (Grandfather's Brothers)”. You have not clearly stated that on whose name the property was purchased by mortgaging your ancestral agricultural land. On your father’s uncles name or your GF name. If you clarify this point I can give you the correct picture of percentage of sharing.
After the demise of your grandfather his heirs i.e his widow and all children including daughters succeeded equally to the property. The share of the deceased aunt devolved on her children. Unless there was a relinquishment deed or family settlement wherein the other heirs relinquished their share in favour of your father the latter does not become the absolute owner of the property. Repayment of the loan by your father does not pass the title to him. You should contest the case on merits if you do not want to have an amicable settlement.
If she has filed a partition suit seeking 50% share in the property, as a legal heir to your deceased father, you also can contest and challenge her claim.
The compassionate ground employment due to your grandfather's death is a good evidence to prove that she relinquished her rights in the property as a result of availing another opportunity.
The mortgage loan repayments shall also stand as a good evidence to your defence.
You can challenge even on the basis of UP zamindari abolition act also stating that at the time of grandfather's death she was not entitled to agricultural landed property out of whose sale proceeds this property was bought.
You have strong reasons and grounds for defending your case.
The fact that property was muted in the favour of your father is itself a relevant fact to show that your father had no intention to merge this property in joint family property. When a member of the joint family paid any debt and free held that property in his favour that property is his self acquired property and only his legal heir is entitle to get is after his death in intestate.
your aunt has no right on this property, her claim is not sustainable. You must file counter claim against her proceeding before court.