Property Lawyer: October 2017

Monday, October 2, 2017

A hindu girl who converts her religion can still claim share in father’s property

In a matter where a Hindu woman converted to Islam after marrying a Muslim man and renounced Hindu faith, does not disqualify her to inherit father’s property.

As per the Hindu Succession Act, if a person has converted then it does not disqualify her from claiming her share in the ancestral property. The Act only disqualifies the descendants of the convert who are born to the convert after such conversion from inheriting the property of any of their Hindu relatives.

In the present matter, the state revenue authorities were of the opinion that since she has renounced her religion voluntary and hence does not have any right to share in father’s property.

Nasimbanu Friozkhan Pathan from Vadodara renounced Hinduism and embraced Islam on July 11, 1990. Subsequently, she married Firoz Khan on January 25, 1991, as per the Muslim rituals.

In 2004, her father passed away leaving behind sizeable parcels in land in their village. However, her siblings opposed her claims and refused to enter her name in the list of claimants as she is no longer a Hindu.

The court explained as she voluntarily embraced Islam, the provisions of inheritance laws cannot be enforced in her case. After hearing the matter, Justice Pardiwala explained the applicability of provisions existing in Hindu Shastric laws for disqualification of Hindu women for succession or maintenance were kept aside.

The Author Mr.K.P.Satish Kumar M.L. is the leading Civil Lawyer in India

For queries to Daniel & Daniel call at 9840802218.

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Assets of Hindu Undivided Family is considered as Joint property

The Supreme Court in a recent ruling clarified that all the assets in Hindu Undivided Family are considered to be joint property and it belongs to all the members of the joint family. If any family member wants to claim it as self-acquired property then they are required to furnish requisite proof for the same.

The apex court passed this order when a plea was made by members of a joint family as they were claiming ownership of agricultural land of the family on the ground that they have acquired the property and others have no rights over them.

Considering the case, the bench comprising of Justice R K Agrawal and Akshay Manmohan Sapre explained that in such matters the burden of proof is always on the family member who is claiming ownership over a part of the property of the joint family. To claim his ownership he must put reliance over relevant oral or documentary evidence.

The bench observed, “It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship, and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden lies upon the member who, after admitting the existence of jointness in the family properties, asserts his claim that some properties out of an entire lot of ancestral properties are self- acquired.”

While passing this order the bench upheld the Karnataka High Court order which had declared the property as the joint property of the family.

The court held that in the instant matter, the petitioners have failed to place reliance over any evidence to prove that they had acquired the property for themselves and did not belong to the entire joint family. If the claimants want to prove that the suit properties were their self-acquired properties they have to produce the best evidence either in form of sale deed showing their names as purchasers of the said properties or any other proof to establish their claim over the same.

The bench also mentioned that it is obligatory for the family members who are contesting over the joint property to prove that it was not the part of the ancestral property. In the present case, the petitioners have failed to prove their claims that is the part of their self-acquired property.

The court said, “In our considered opinion, the legal presumption of the suit properties to be also the part and parcel of the ancestral one could easily be drawn for want of any evidence of such properties being self-acquired properties of the plaintiffs.”

The Author Mr.K.P.Satish Kumar M.L. is the leading civil Advocate in Chennai

for Free legal query call at 9840802218

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Things Necessary for obtaining Succession Certificate in India

In case of death of a person without leaving a will, court may grant succession certificate in order to realise securities or debts of the deceased. A civil court issues succession certificate to the legal heirs of a deceased person.

It is required to establish the authenticity of the heirs. Also to authorize them to get assets or securities transferred in their names. Not to forget that assets comes with liabilities as such it also enables inheritance of debts. This is issued on the application from the beneficiary, to court as per laws of inheritance. It is necessary, though may not be always sufficient, to release or transfer the assets. For these letter of administration, no-objection certificates and death certificate is also required.

Application: As discussed earlier also, a petition is required to be filed with the competent jurisdiction where the assets are located.

Details: The application requires details like
– name of petitioner
– relationship with deceased
– names of all heirs of the deceased
– time, date and place of death

Also a copy of the death certificate is required to be produced.

Fees: A fixed percentage of the value of the estate is levied as fee for issuance of the certificate by the court. This fee is to be paid in the form of judicial stamp papers of the said amount. Only after this a the certificate is issued. Also, the lawyer will also charging their fees.

Process: The notice in the newspapers for a given period (generally 45 days) is issued by the court. In case where no one contests the petition on or before the expiry of given period, the court sanctions the order for issuance of succession certificate.

If the petition is not contested, the court usually issues a succession certificate in five to seven months.

Looking at the process, it is always better to write a will or appoint a nominee in all your financial accounts like stocks, saving accounts, fixed deposits or mutual funds etc. The nomination may also be filed with your properties ownership.

Article by Mr.K.P.Satish Kumar the top advocate for money claims in Chennai
Free Consultation in phone with the Top Civil Lawyer in Chennai Form Team Daniel & Daniel @ 9962999008.

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How to Probate a will in INDIA

When it comes to administering a decedent's estate, the process commonly referred to as "probate”—many people fear it is daunting and complicated, but it can actually be as simple as four steps.

What is the Probate Process?

Probate refers to the process whereby certain of decedent's debts may be settled and legal title to the decedent's property held in the decedent's name alone and not otherwise distributed by law is transferred to heirs and beneficiaries. If a decedent had a will, and the decedent had property subject to probate, the probate process begins when the executor, who is nominated by the decedent in the last will, presents the will for probate in a courthouse in the county where the decedent lived, or owned property. If there is no will, someone must ask the court to appoint him or her as administrator of the decedent's estate. Often, this is the spouse or an adult child of the decedent. Once appointed by the court, the executor or administrator becomes the legal representative of the estate.

The Four Basic Steps to Probate

1. File a petition and give notice to heirs and beneficiaries.

As described above, the probate process begins with the filing of the petition with the probate court to either (1) admit the will to probate and appoint the executor or (2) if there is no will, appoint an administrator of the estate. Generally, notice of the court hearing regarding the petition must be provided to all of the decedent's heirs and beneficiaries. If an heir or beneficiary objects to the petition, they have the opportunity to do so in court. Also, generally, notice of the hearing is published in a local newspaper. This is to attempt to notify others, such as unknown creditors of the decedent, of the beginning of the proceeding.

2. Following appointment by the court, the personal representative must give notice to all known creditors of the estate and take an inventory of the estate property.

The personal representative then gives written notice to all creditors of the estate based upon state law; any creditor who wishes to make a claim on assets of the estate must do so within a limited period of time (which also varies by state).

An inventory of all of decedent's probate property, including real property, stocks, bonds, business interests, among other assets, is taken. In some states, a court appointed appraiser values the assets. When necessary, an independent appraiser is hired by the estate to appraise non-cash assets.

3. All estate and funeral expenses, debts and taxes must be paid from the estate.

The personal representative must determine which creditor's claims are legitimate and pay those and other final bills from the estate. In some instances, the personal representative is permitted to sell estate assets to satisfy the decedent's obligations.

4. Legal title in property is transferred according to the will or under the laws of intestacy (if the decedent did not have a will).

Following the waiting period to allow creditors to file claims against the estate, and all approved claims and bills are paid, generally, the personal representative petitions the court for the authority to transfer the remaining assets to beneficiaries as directed in the decedent's last will and testament or, if there is no will, according to state intestate succession laws. If the will calls for the creation of a trust for the benefit of a minor, spouse or incapacitated family member, money is then transferred to the trustee. Unless the beneficiaries of the estate waive the requirement as allowed under some state laws, the petition may include an accounting of how the assets were managed during the probate process. Once the petition is granted, the personal representative may draw up new deeds for property, transfer stock, liquidate assets and transfer property to the appropriate recipients.

In short, a properly drafted will, updated regularly to account for life changes, organized records of debts, personal property and other assets simplifies the probate process. The easier it is for your personal representative to trace your steps after you're gone, the easier the process.

Article by Advocate K..P.Satish Kumar Advocate at High Court of Madras, advocate for Probate for will Matters, is the leading civil Attorney in India.
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How to get money from the savings account of a death person

When opening bank accounts, most of the banks try to coerce you into making a nomination in the new bank account that you open.
At times you may want to create a nomination or choose to ignore the same. However, if you do make a nomination it would be extremely helpful to your family members. Many banks try to remind elderly customers if there is no nomination in the savings account or a fixed deposit.
Many elderly individuals who have opened account at a very early stage may not have made a nomination. While ideally you must, here are is what could happen in case the person meets with death and there is no nomination in the savings account. A few method in which money can be claimed from the savings account of a dead person.
In case of joint account with either or survivor
In case the savings bank account has been with another joint account holder, then the balance in the account would be passed onto the survivor.
A copy of the application, along with a photocopy of the death certificate would be enough for the bank to delete the name of the dead person. In case the survivor wants to continue the savings account, he can or he can simply proceed to close the same.
In case of nomination
In case where there is a nomination the bank will pass the proceeds to the nominee. It will first proceed to check the nomination, along with original copy of the death certificate.
However, if there is a dispute and a WILL it might be a long cumbersome process. There would also be a need for two witnesses to ensure that the bank passes on the dues to the nominee.
Succession certificate/Copy of WILL
Where there is no nominee or the account is not joint, the legal heir may need to produce a copy of the WILL or there has to be a succession certificate in place.
In case of no claimants
In case there is no claimant than the bank may transfer the account to a dormant account. As and when there is a claim made the bank may transfer the balance in the savings account to the legal heir.

It is always a better proposition to open a joint account or one that has a nomination. This would ensure that you would have people who are family members get the proceeds from the savings bank account of a dead person.

Article by Advocate K.P.Satish Kumar M.L. Top Advocate for money claims and leading civil Advocate in Chennai.
For queries call Daniel & Daniel @ 9962000008.

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How to do partition of your father's property

nheritance in India is governed by two process – 1. By Will 2. Personal laws

Inheritance under a Will

A will or testament is a legal declaration expressing the wishes of a person, containing the names of one or more persons who are to manage his estate and provide for the transfer of his property at death.
If a father (testator) leaves behind a Will, the property will be distributed among the brothers according to it. An executor is appointed by the testator, as distinguished from an administrator who is appointed by the court.

Inheritance according to personal law

Inheritance in India and the manner in which property of a deceased person is to be distributed is determined by the law of Succession, in the event where there is no will or equivalent document declaring the deceased person’s intent.

Under Hindu law

Section 8 and 9 of the Hindu Succession Act, 1956 governs the distribution of the property after the death of the Hindu male. The property of a Hindu dying intestate devolves upon his heirs of Class I who take the property to the exclusion of all other heirs. And if there are no Class 1 then to Class 2 Heirs.

For example, if the father dies leaving behind his wife and four sons, then each will inherit equal shares of his property, i.e. each will get 1/5th of the father’s property.

Under Muslim Law

There is no concept of ancestral property or rights by birth in Muslim law. Islam recognises that persons may leave behind a will, but a will (unless ratified by all the heirs of the person leaving behind the will) is valid only to the extent of one-third of the deceased's property. Insofar as it is valid, it is governed by the regular laws applicable to wills in India.
-A Muslim wife cannot be dispossessed.
-Even though she has to share with other wives if there is more than one wife.
-The widow gets a definite share.
-Mohammedan Law gives the male heirs, the sons, twice the share of the daughters

Legal Process of distribution

Before making a claim to any property left by the deceased, it should be made sure that there are no debts outstanding. All the heirs would have to first agree to chalk out a strategy to clear the debt.

In case, the property is to be distributed among brothers according to the Will left by their father, it is important to make sure there are no ambiguity in the Will and legal advice must be sought while arriving at any kind of settlement. Lack of clarity in the will can lead to serious legal complications at a later stage, which can be avoided by working in the right direction in the beginning itself.

If there is no Will, then a property can be distributed by way of partition deed or family settlement.

Suit of Partition – A suit of partition can be filed by any or all brothers w.r.t property. A partition deed for a property is executed among different people, usually family members.

Family Settlement procedure – A family settlement is an agreement where family members mutually work out how a property should get distributed among themselves. All the parties should be related to each other and have a claim to a share of the disputed property.

Family settlement is a conciliation process where a third person, usually a lawyer or a senior family member, helps the family arrive at a mutually acceptable solution to the property dispute.

Article by Advocate K.P.Satish Kumar M.l. top property disputes lawyer in Chennai and a leading Partition Advocate
For queries call Daniel & Daniel @ 9840802218

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What to do immediately to claim the property of death person

Right after death, get the death certificates from the municipality, which will be shown when inheriting money from bank accounts, closing the deceased bank accounts, etc. Family members are required to register the births and deaths within the prescribed period of 21 (twenty one) days from the date of death to the registrar.
The registrar is:
In Rural areas,

Registrar (rural) – Village accountant
In Urban areas the following are the registrars

In case of City corporations: Health officer.
In case of City Municipal councils: Health officer/Health inspector.
In case of Town municipal councils: Health inspector.
In case of Notified areas/Project areas/Cantonment – Health inspector.

As there is no will, the legal heirs will have to get a succession certificate for inheriting the property. You should file an application in the civil court of the district where the property is of the deceased or where he normally he lived in. A notice will then be given by the court to you – the legal heirs; and an ad will also be published in the newspaper. The court will then take a time of around 4-6 weeks, where the court will wait for objections to the inheritance, if any, from others. After that the court will pass a succession order certificate. The party concerned, i.e. you, will have to give judicial stamp paper of sufficient amount prescribed by the court fee structure to the court. The local law of the State in which the property is situated determines the stamp duty and court fees.

The legal heirs will have to apply to the probate registry to deal with the estate. In this case you need to apply for a ‘grant of letters of administration’. An application needs to be filed in the court for the letter of administration for the property. ‘Letter of administration’ is a certificate granted by the competent court to an administrator. If the grant is given, you will be known as ‘administrators’ of the estate. The grant of administration is a legal document which confirms the administrator’s authority to deal with the deceased person’s assets.

The legal heirs will have to make an application to the court within 90 days from the death of the deceased inheriting the house and land in the following manner:

The agricultural land will be divided into four equal parts, each of the four members given an equal share.
The house is normally inherited in the name of the four heirs as joint owners. If however the daughter wants to sell her portion of the house, the whole house may be sold and the amount of sale may be equally divided but only if the son/s wants the division. (Section 23 of Hindu Succession Act)
If the deceased person owned property with another person or persons as ‘beneficial joint tenants’, the deceased person’s share automatically passes to the surviving joint owner(s)

Article by Advocate K.P.Satish Kumar M.L. , leading property Advocate in Chennai
For queries contact Daniel & Daniel to call for the top property lawyer @ 9962999008.

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How to take the death person money from the Bank

If the bank account of the deceased has no nominee mentioned then according to Reserve Bank circular dated 12 July 2005, if the money is less than the threshold limit decided by different banks (which is normally around Rs.1 lakh) then banks are advised to desist from insisting on production of succession certificate, letter of administration, etc. Here the legal heirs i.e. all the four successors, have to sign a letter of indemnity which states that the bank is not liable any more. The heirs, i.e. you, will be receiving payments from bank as trustee of legal heir from the deceased person. If any legal problem surfaces regarding the ownership of the bank money, then the complainant will deal directly with you and not with the bank.

If the money in the bank is more than the threshold limit decided by your bank, then succession certificate is mandatory. For inheriting the money of the deceased, all the legal heirs should also write and sign a Joint application for the same.

If the deceased person had held money with another person in a joint bank or building society account, the surviving joint owner automatically owns the money. If there is a nominee, the bank will establish the fact of death of the deceased (death certificate is necessary) and the identity of the nominee, then the remaining balance will be transferred to the nominee. The bank will make clear to the nominee that he/she would be receiving the payment from the bank as a trustee of the legal heir of the legal depositor, i.e. the nominee would have to return the money to the legal heirs of the deceased.

Article K.P.Satish Kumar M.L., Best Civil lawyer in Chennai
For queries contact Daniel & Daniel @ 9962999008.

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A testator can change Will

A testator can change his Will, at any time, in any manner he deems fit. Every person of sound mind, and not a minor, can make a Will. If a person is of unsound mind at the time of making a Will, the Will is not enforceable.

A Will, obtained by force, coercion or undue influence , is a void Will as it takes away the free agency of the person. A Will, made under influence of intoxication or in such a state of body or mind, sufficient to take away free agency of the testator, is void.

A Will can be made at any time in the life of a person. There is no restriction on how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable. A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.

Article by Advocate K.P.Satish Kumar M.L., leading Civil lawyer in Chennai

For all your legal Queries to the top property disputes lawyer call Daniel & Daniel @ 9962999008.

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Property Lawyer

Monday, October 2, 2017

A hindu girl who converts her religion can still claim share in father’s property

Assets of Hindu Undivided Family is considered as Joint property

Things Necessary for obtaining Succession Certificate in India

How to Probate a will in INDIA

How to get money from the savings account of a death person

How to do partition of your father's property

What to do immediately to claim the property of death person

How to take the death person money from the Bank

A testator can change Will

What Property May Be Disposed Of By Will? - Probate Lawyer Helpline - 9840802218

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