Property ownership after father's death (he bought his own)


My father expired 4 years before, he had own a house with 20 cent land. After that my mother is living alone in this house. I have 1 brother(elder) and 1 sister (younger). Mother doesn't have any income for here lively hood and treatment. Brother is wanted whole property in his name and same time is not ready to take care of mother. Mother want to do partition of the asset in to four equal part and stay in the same house for her lifetime. what should be done for that. or who has the right to do the partition. Please advise

Answers (4)


211 votes

The division of property can be done through two procedures-

  1. Through Will,

  2. Through Personal Laws.

In case your father has left a will, the property will be distributed among the legal heirs in accordance with the Will. A Will is a legal document that declares the wishes of a person pertaining to the distribution of his property and other valuables after his death. In order to execute the will, an executor is appointed by the testator (maker of the Will) who does the distribution of assets as the will dictates.

However, if your father has died intestate, i.e. without leaving a Will, then the distribution of property is done in accordance with the personal laws.
 

Division of property as per the personal laws

Assuming that your father belonged to the Hindu community for the purposes of this question, the procedure for distribution of property as per the Hindu law has been discussed below:

Under Hindu law, it is important to know whether the property is ancestral or self-acquired in order to distribute the same. Ancestral property is defined as one that is inherited up to four generations of male lineage and should have stayed undivided throughout this period. Whereas, a self-acquired property refers to a property which has been bought by the father with his own money.

In case of an inherited property, an equal share accrues by birth itself, be it a daughter or a son. Thus, the father cannot Will such property to anyone he wants to, or deprive a legal heir of his share in it. However, in the case of self-acquired property, the father has a right to gift the property or will it to anyone he wants, and the legal heir will not have a right to raise an objection. In case the self-acquired property is not gifted or willed to a third person, it will be distributed among the legal heirs of the owner equally.
 

Procedure for property distribution

Before filing a case for any property left by the deceased, it ought to be ensured that there are no debts outstanding. Every one of the heirs would need to initially consent to chalk out a methodology to clear the debt in case there is debt towards the ancestral property as the debt will be paid out of the property before it can be distributed. Once this is done, the property can be divided through the below-mentioned processes:

Suit for Partition – A suit for partition can be filed by any or all legal heirs. Under this, upon hearing the contention of the parties associated with the suit, if the court is satisfied that the parties to the suit are legally entitled to the property of the deceased, a partition deed for the property is executed dividing such property among the legal heirs of the deceased.

Family Settlement – A family settlement is an understanding where the legal heirs commonly work out a plan on how a property ought to get conveyed among themselves. In a family settlement- all the parties should be related to each other and have a claim to a share of the disputed property.

A family settlement is a procedure where a third individual, more often than not a lawyer or a senior family member, enables the family to land at a common conclusion for the disputed property.
 

Why do you need a lawyer?

Sometimes the law and the legal framework can get confusing and difficult to understand, especially when the issue is regarding a dispute related to family property. In such a scenario, one may not realize how to determine the legal issue, the area to which the issue relates to, whether the issue requires going to court and, how the court procedure works. Seeing a lawyer and getting some legal advice can enable you to comprehend your choices and can give you the certainty to enable yourself to determine your legal recourse.

An experienced property attorney can give you expert advice on how to handle your property issue owing to his years of experience in handling such cases. An experienced property lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get your share in the property as quickly as possible.
 

Consequences of not addressing the issue timely

Property disputes between siblings are a common occurrence in India these days. Legal disputes over property take place across people at different levels in the society, be it households with low-income or wealthy families. Even a will as strong as iron can be challenged by the unhappy beneficiaries and the property can be put to dispute for years unless resolved by the courts. Thus, it is important to deal with the issue as soon as possible with the help of an experienced property lawyer, who can guide you with the case and can help you get your share in the property in an effective and less time-consuming manner.

267 votes

Your mother being legal heir of your father has equal share in the property. No one can disown her from the property. You can seek partition. Later mother and Sister can give no objection to Partition. She can also file for maintenance under Section 125 of Criminal Procedure Code.


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191 votes

After the death of your father, if he died without a Will, then the property will devolve amongst all legal heir.
So in case your father did not have a Will, you, your mother and other siblings will be legal heir and the house will devolve amongst four.
We suggest you that through a lawyer prepare the family settlement agreement/ partition deed, wherein you define your share/ percentage and get the same registered before sub registrar .Incase of any dispute then you will have to file a partition suit and this will take a longer period of time
Both the procedure can be done during the lifetime of your mother.
However your father died with a Will and your mother is the owner by virtue of Will, then your mother can execute a Will during her lifetime diving the share equally amongst all sibling. This Will becomes operative after death of your mother

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255 votes

All brothers ,sister and mother have right in the property,for partition you can consult an architect to margin the portion of the land equally,the same could be registered in the form of partition deed registered before the registrar,with 2 witness.

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