Transfer Property In Your Name Before Making A Gift Deed On It – Livemint – 18-Nov-2014
November 18, 2014 - Uncategorized
My late father-in-law had a house property, which my husband and his brother (both deceased) wanted to partition. My husband’s brother’s wife, claimed herself as the owner of half of the house and executed a gift deed in favour of her son. Can she do that, even though the house is still in my father-in-law’s name, and has not been transferred in her name? —Jayshree We are assuming: (a) that your father-in-law was a Hindu male; (b) that he died intestate (i.e. without a Will); (c) he was therefore governed by the provisions of the Hindu Succession Act, 1956 (the Act) relating to intestate succession; and (d) that the property was his absolute property. The heirs of a person who has died intestate are determined in accordance with the Act. The share/interest in the property will be determined by sections 8, 9 and 10 of the Act. In the first instance, the property of the male intestate Will devolve on his class I heirs and distribution among heirs is as under: “The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules: Rule 1—The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2—The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3—The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share. Rule 4—The distribution of the share referred to in Rule 3: (i) among the heirs in the branch of the pre-deceased son shall be so that his widow (or widows together) and surviving sons and daughters get equal portions; and the branch of his predeceased sons gets the same portion; (ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.” It’s not clear whether your father-in-law died before both his sons or your husband and brother-in-law died first. If your father-in-law pre-deceased your husband and brother-in-law (and on the assumption that your husband and brother-in-law were the only surviving class I legal heirs of your father-in-law), then they would have each inherited an equal share (i.e. 50% each). On your husband’s demise, you and your children would have inherited equal shares in your husband’s 50%. Your sister-in-law and her children would have inherited equal shares in your brother-in-law’s 50% share. If your husband and brother-in-law died before your father-in-law, the division would be as per rules 3 and 4 above. Thus your sister-in-law, her son, you and your child (if any) are class I heirs and all the aforementioned class I heirs inherit the said property simultaneously. Thus, it can be established that your sister-in-law is the absolute owner of her share/interest in the property by virtue of the Hindu succession law in spite of the property being in your father-in-law’s name. While your sister-in-law is entitled to transfer her share/interest to her son by way of gift deed, it should have been transferred in her name before she executed the gift deed.