11 March 2020

Owner Has The Unfettered Right To Bequeath His Property To Anyone

Rajani Associates


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If the property is self-acquired, not ancestral, the question of taking consent from anyone does not arise
India Real Estate and Construction
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  • If the property is self-acquired, not ancestral, the question of taking consent from anyone does not arise
  • The grandfather being an owner of his property has the absolute and unfettered rights to deal with his property in the manner he wishes

A Hindu male died leaving behind a Will duly executed by him. His mother and wife are his only heirs. He does not have children. In the Will, he has bequeathed a flat he bought himself to his wife and mother as joint tenants or owners. After the death of either joint owner, will the remaining person get the entire share?

  • Name withheld on request

Assuming that the deceased person's Will is very clear on the bequest made with respect to the subject flat in favour of his mother and his wife, on a joint tenancy or on a joint ownership basis, and further that the Will has not been challenged till date, both the mother and the wife, during their lifetime, will be equally entitled to the subject flat.

Under the concept of joint tenancy or joint ownership, there exists a right of survivorship. That is to say, when a property is owned by joint tenants or joint owners, and if one of the owners dies, the interest of the deceased owner automatically gets transferred to the surviving owner, thus causing the surviving owner to become the absolute owner of such property.

Therefore, in this case, upon the demise of the mother, the wife will become the absolute owner of the subject flat, or vice-versa in case the wife pre-deceases the mother.

My paternal grandfather has two sons and three daughters. He wants to transfer some property to me and my elder brother. The said property was purchased by him and not inherited. Can my grandfather transfer the property to us without taking the consent of his other son and three daughters? Please note that both my grandparents and all five of their children are still alive.

  • Siddhartha Mohapatra

We have assumed on the basis of the information provided by you that the property your grandfather has is a self-acquired property, and not an ancestral one. Your grandfather wishes to gift and transfer his self-owned property to his two grandsons during his lifetime, despite the fact that his wife, two sons and three daughters are alive.

Please note that your grandfather being an owner of his property has the absolute and unfettered rights to deal with his property in the manner he wishes. Nobody can prevent him from gifting his property to his grandsons, or to any person he desires.

The question of seeking consent from his sons and/or three daughters or any other family member does not and cannot arise in this case.

We have 15 hectares of land in Nagpur. The land ownership papers were in the name of my great grandfather, who passed away in 1990. My grandfather, his two brothers and three sisters also passed away by 2016. The property is the last remaining asset held by my uncles. But now the heirs of my grandfather's sisters are asking for an equal share in the property. Do they have the right to claim this portion? What should we do?

  • Vijay Gotmare

It is assumed that the Hindu personal laws are applicable to you and your family and that the property was treated as a joint Hindu family property, where all the heirs of the great grandfather enjoyed common interest.

According to the Hindu Succession Act, 1956, which prevailed prior to the Hindu Succession (Amendment) Act, 2005 (effective from 5 September 2005), daughters were not considered as members of a Hindu Undivided Family, and, consequently, were excluded from claiming any share in the ancestral or coparcenary property of the family.

Since your great grandfather died prior to September 2005, the daughters of the great grandfather, that is, the three sisters of your grandfather, were not entitled to a share in the ancestral property, during their lifetime. Consequently, their legal heirs are also not entitled to any share in the property.

Previously published on Livemint

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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