Late Father died intestate in 2020. during his lifetime bought several immovable properties in his name and mothers name and also held moveable properties ie FD's in Banks with Valid Nominations. Late father is survived by 5 class 1 heirs - widow plus 4 sons
now one of the nuisance creating sons has filed a partition suit and has included
1.fathers self acquired properties where he holds title
2.mothers immovable property in her name
3.some garden pots
4. selective household furniture
5. all moveable items held at banks
6. Alleged Black money - though this doesn't exist.
On Immovable Properties
Mother has been the registered sale deed ( title holder ) for some 15- 30 years across various properties including having mutation in her name . and that during the lifetime of the late father he never filed a case against mother for claiming back those properties.
But this nuisance creating son who is now saying these are properties left jointly by the late father as per his Plaint even though sale deeds says mothers name only
Now we are under the impression there will be a 1/5th division of only Father Self acquired properties. where title exists in father name.
Mothers properties are her absolute properties as per section 14.1 HSA. Furthermore the sale deeds in mothers name have no restriction on her ownership therefore Section 14.2 HSA doesn't apply
Also Benami transactions Act has recently been updated but the query is can the nuisance creating son claim the property will be of the de jure owner ie late father and not of the de facto owner (in whose name title deeds exist ie mother)
There was a landmark judgment where the husband claimed against wife . however in this case, the late father passed away in 2020 and it is one of the sons who has brought about this suit for partition and not the Late Father.
On Moveable Properties
Since the moveable properties ie Fixed deposits held valid nominations in place ordinarily they would be settled to the nominees as custodians of the legal heirs to prevent financial hardships to the family of the deceased and in line with (Section 45ZA of the Banking Regulation Act ) provided no court order restrains the Bank for releasing the Money to the Nominee ((Section 45ZB of the Banking Regulation Act )
But the same nuisance creating son fraudulently changed the Nominee on the registered fixed deposits after the death of the father using OTP and mobile in order to cheat the legal heirs. A separate criminal case at CJM under 420 / 120 b has been filed already
Consequently as Nomination was fraudulently changed / disputed the Banks did not release the money to the Nominee and therefore the mother filed for a succession certificate to release those debts which is pending in court.
Can mothers immovable properties be dragged into this frivolous partition?
Are we right to apply for a succession certificate vis a vis settlement of funds now as nomination is disputed.
Can alleged black money ( we deny ) be included in a title partition suit.
Since a Succession certificate has been applied for , can the nuisance creating property claim res judicata as he has filed a partition suit for immoveable and moveable including fictitious items plus other defendants self acquired properties with he sole aim of dragging this in litigation so that legal heirs of the deceased dont see money in their lifetime . PS succession certificate application and title partition suit both have been filed but not admitted yet. his whole ideal behind including moveable items in title partition suit is to delay proceedings as partition suits consume several years and mother may not survive. whereas my understanding is succession certificate proceedings are summary in nature and allow the debt securities holder to discharge the funds without any legal implications. also money is needed for survival and we cannot wait for several years / decades for immoveable properties to be partitioned.
Ankur Goel @ Complete Law Shield
Responded 1 year ago
Note to Vidhkarya - Its better to limit no of words in questions
Ayantika Mondal @ Prime Legal
Responded 1 year ago
1. The Son cannot claim right on the self acquired properties of the mother while she is alive. The properties held in mother's name shall be treated as self acquired property.
2. Since nomination is disputed, the settlement of funds would be done among the legal heirs, therefore succession certificate will be required.
3. Under the Benami Transaction Act, no suit lies for the recovery of any benami property.
4. Succession Certificate only determines the legal heirs and, whereas the partition suit is for a decree of the court to get a share/shares in the property, so there is no question of res judicata as these are inherently different. These two will be dealt separately by the court as per the procedure for each.