Sale of house
5 years ago
Dear Sir/Madam,
I am a Roman Catholic living in Mumbai. Both my parents have passed away. All my siblings are married except me (we are total 5). The only papers my father has is the Share Certificate which was transferred to my eldest brothers name after my fathers death. The Form of Nomination (Original & Duplicate), where my father has mentioned in the event of his death should be transferred to my eldest brother. My dad has also mentioned to nominate 4 of us in the nomination, dividing it equally 25% each.
1. He has left out my elder sister's name in the nomination (she is married) - Does she have a right to a share?
2. My younger married sister has just passed away in 2018 (25% share) - so does she still have a right to her share?
3. I am in dire straits, I have absolutely no money at all. I do not earn much that I can even pay monthly bills. My eldest brother is harassing me for the house papers & he is not willing to sell the flat cos of this ( I have been advised in the past by a Priest not to sign any papers given by them & also a lawyer told me not to give the papers to him cos I will be on the street. I have also been told to be careful even with the xerox copies of the house papers), .
4. In the past, one lawyer has told me I can approach the court & that my brother will have to collect his share from the court. Is this really true?
5. What are the legal fees for asking the court to sell the property? How costly & lengthy is this?
6. I have read you have to have a valid reason why you want the house to be sold, can my having no money & no proper job be a valid reason?
I would be grateful for some advice on the above.
Awaiting your reply
Thanking you
A.Christians have varied laws on succession and familial relations. The rules for succession among the Christians has been codified under the Indian Succession Act, 1925, while on the other hand customary practices also have an influence on the principles of inheritance.
The British Indian Government enacted the Indian Succession Act, 1865 which was to apply in the case of Christians. This Act was later replaced by the Indian Succession Act, 1925 (hereinafter referred to as “ISA”), which currently governs the inheritance in case of Christians. Certain customary practices also influence the principles of inheritance in case of Christians and have also been considered by the courts in India.
Estate
All property owned by an individual, irrespective of the mode of acquisition, the) mode of acquisition is treated as the individuals’ self-acquired property and is free to dispose-off the same in any manner during his lifetime. In case the property has not been disposed-off by way of will, then the same shall devolve upon his / her successors and heirs upon his death. Properties or money given by the interstate to a child for his / her advancement in the life would not be considered at the time of distribution of the intestate’s wealth / property.
Descendants & Rules of Inheritance
The laws of inheritance applicable to Christians are same for both genders. The property of a person dying intestate is bequeathed to the spouse of the deceased , or upon those who are kindred of the person deceased. Chapter II of the ISA provides for the order and the concerned rules for the devolution of the estate and the share to be allotted to the heirs. The ISA provides that a widow is not entitled to the property if by a valid contract made before the marriage she has been explicitly excluded from the distributive share of her husband’s estate.
The term ‘lineal descendants’, as described under the ISA, includes children or children’s children and only those born out of a lawful marriage, thereby excluding relations such as daughter’s illegitimate son or a son’s illegitimate daughter or any other illegitimate issue as such illegitimate children are not considered children by the provisions of ISA. If an intestate has left a widow and also lineal descendants, 1/3rd of the estate shall devolve upon the widow and the remaining 2/3rd shall go to the lineal descendants. If the intestate has left behind a widow and does not have any lineal descendants, but has left behind persons who are kindred to him, the property would be divided into halves, one would divulge to the widow of the intestate and the other half would divulge to the kindred. However, in case the intestate has left no kindred, the whole property would be inherited by the widow.
In cases where an intestate has no child, but only has grandchildren and no other remote descendent, the property shall go equally to the all the grandchildren. A husband is not entitled to inherit the property of the divorced wife and in case of judicial separation, the property of the wife would devolve upon her legal heirs as if the husband is already divorced. Also, a daughter-in-law has no right of succession to the estate of her intestate father-in-law. Moreover in case of a Christian daughter, there exist no pre-existing right in the family property and her right generally arises when her parents die intestate.
With regard to the legitimate descendants and legitimate and illegitimate children, the Kerala High Court in the case of Jane Antony, Wife of Antony v. V.M. Siyath, Vellooparambil specifically opined that all illegitimate children, though born out of the wedlock, are children born out to the man and woman who cohabited for some time and are in substance husband and wife for all purposes. Therefore, the court showed no hesitation in declaring the children as legitimate and entitled to succeed to the deceased’s estate.
It is well settled in Christianity that the heirs’ religion is immaterial and the only material fact is that the deceased should have belonged to the Christian religion on the date of death. The rights granted to the biological child are not recognised for the adopted child.
Catholic Priests and Inheritance
The Indian courts in several cases pertaining to inheritance for Catholic Priests have held that the right to inherit a distributive share is not extinguished either by usage or existing personal laws.
The Madras High Court adjudged in a dispute regarding inheritance that the provisions of the ISA relating to Christians are also applicable in the case of inheritance of property of a Priest and is allowed only to the natural heirs of the deceased and not to superiors of the priest.
Catholic Nuns and Inheritance
With regard to the rules for succession in the case of the Catholic Nuns also, there have been different views taken by the Karnataka High Court and the Kerala High Court.
The Karnataka High Court has opined that a nun is entitled to a distributive share in the property of her natural family in case on intestate succession. However, the Kerala High Court has stated that where a nun ceases to have any connection with her natural family after entering the Church, the legal effect is that she is not considered to have a father, a mother or a family and is thus not entitled to a share in the estate of her natural family.
Therefore, the views taken by the two High Courts are diametrically opposed as regards the status of a nun for inheritance.
The British Indian Government enacted the Indian Succession Act, 1865 which was to apply in the case of Christians. This Act was later replaced by the Indian Succession Act, 1925 (hereinafter referred to as “ISA”), which currently governs the inheritance in case of Christians. Certain customary practices also influence the principles of inheritance in case of Christians and have also been considered by the courts in India.
Estate
All property owned by an individual, irrespective of the mode of acquisition, the) mode of acquisition is treated as the individuals’ self-acquired property and is free to dispose-off the same in any manner during his lifetime. In case the property has not been disposed-off by way of will, then the same shall devolve upon his / her successors and heirs upon his death. Properties or money given by the interstate to a child for his / her advancement in the life would not be considered at the time of distribution of the intestate’s wealth / property.
Descendants & Rules of Inheritance
The laws of inheritance applicable to Christians are same for both genders. The property of a person dying intestate is bequeathed to the spouse of the deceased , or upon those who are kindred of the person deceased. Chapter II of the ISA provides for the order and the concerned rules for the devolution of the estate and the share to be allotted to the heirs. The ISA provides that a widow is not entitled to the property if by a valid contract made before the marriage she has been explicitly excluded from the distributive share of her husband’s estate.
The term ‘lineal descendants’, as described under the ISA, includes children or children’s children and only those born out of a lawful marriage, thereby excluding relations such as daughter’s illegitimate son or a son’s illegitimate daughter or any other illegitimate issue as such illegitimate children are not considered children by the provisions of ISA. If an intestate has left a widow and also lineal descendants, 1/3rd of the estate shall devolve upon the widow and the remaining 2/3rd shall go to the lineal descendants. If the intestate has left behind a widow and does not have any lineal descendants, but has left behind persons who are kindred to him, the property would be divided into halves, one would divulge to the widow of the intestate and the other half would divulge to the kindred. However, in case the intestate has left no kindred, the whole property would be inherited by the widow.
In cases where an intestate has no child, but only has grandchildren and no other remote descendent, the property shall go equally to the all the grandchildren. A husband is not entitled to inherit the property of the divorced wife and in case of judicial separation, the property of the wife would devolve upon her legal heirs as if the husband is already divorced. Also, a daughter-in-law has no right of succession to the estate of her intestate father-in-law. Moreover in case of a Christian daughter, there exist no pre-existing right in the family property and her right generally arises when her parents die intestate.
With regard to the legitimate descendants and legitimate and illegitimate children, the Kerala High Court in the case of Jane Antony, Wife of Antony v. V.M. Siyath, Vellooparambil specifically opined that all illegitimate children, though born out of the wedlock, are children born out to the man and woman who cohabited for some time and are in substance husband and wife for all purposes. Therefore, the court showed no hesitation in declaring the children as legitimate and entitled to succeed to the deceased’s estate.
It is well settled in Christianity that the heirs’ religion is immaterial and the only material fact is that the deceased should have belonged to the Christian religion on the date of death. The rights granted to the biological child are not recognised for the adopted child.
Catholic Priests and Inheritance
The Indian courts in several cases pertaining to inheritance for Catholic Priests have held that the right to inherit a distributive share is not extinguished either by usage or existing personal laws.
The Madras High Court adjudged in a dispute regarding inheritance that the provisions of the ISA relating to Christians are also applicable in the case of inheritance of property of a Priest and is allowed only to the natural heirs of the deceased and not to superiors of the priest.
Catholic Nuns and Inheritance
With regard to the rules for succession in the case of the Catholic Nuns also, there have been different views taken by the Karnataka High Court and the Kerala High Court.
The Karnataka High Court has opined that a nun is entitled to a distributive share in the property of her natural family in case on intestate succession. However, the Kerala High Court has stated that where a nun ceases to have any connection with her natural family after entering the Church, the legal effect is that she is not considered to have a father, a mother or a family and is thus not entitled to a share in the estate of her natural family.
Therefore, the views taken by the two High Courts are diametrically opposed as regards the status of a nun for inheritance.
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Sunil Kumar Singh
Responded 5 years ago
A.File one succession applicable,You are owner sell your share Or sell along with NOC of co owner
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Rameshwar Dadhe
Responded 5 years ago
A.Dear sir u should approach to the court and file partition suit u will get Ur share . Or all Ur brothers and sisters will get equal shares
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Shreyash Mohta
Responded 5 years ago
A.Dear, Sir/Madam
1. If the house is in your name and you are the owner of the house then you can sell if off with or without any justifiable grounds [provided you are the sole owner]
2. If the house has co owners [ie. owned by multiple persons at the same time] in that case, you need to take a NOC [no objection certificate] from all such owners and can sell it off, BUT,
3. If any of the co owners deny then you cannot sell of the property [even if you wish to], HOWEVER,
4. If such property or your share in such property can be separated then you can sell of your share in the property or the portion or part of the property which you own.
Given that your father has mentioned to transfer the shares to the eldest brother, the rights of the share certificate rests with him. Others are just nominees tot whom such right shall be divided 25%
You can have a right in share certificate in either of the cases
1. Death of your brother [after which the nominee gets the right], OR,
2. If your brother relinquishes his rights by way of writing [in such a case, all the eligible nominees will be entitled to get their share]
Coming to the Question of Share Certificates
1. All the people who are nominated are liable to get the share
2. If any of the nominee is not alive then he or she is not liable for such share, BUT,
3. If before such death, the nominee has assigned someone else to get a right in that share, then, his or her rights will get transferred to such further nominee [in case there is no further nominee, the right ends with such death]
Can you get all the shares ?
YES, but for that
1. there should be no other nominee living at the moment or, no further nominees should have taken place
2. The nominees who are legally entitled to their rights [alive at such time] issue a NOC stating that they do not have a problem if all the shares get transferred to your name and they are relinquishing their rights to such nominations.
Hope this helped.
Shreyash Mohta.
Please do rate me if you liked the advice on the vidhikarya portal.
1. If the house is in your name and you are the owner of the house then you can sell if off with or without any justifiable grounds [provided you are the sole owner]
2. If the house has co owners [ie. owned by multiple persons at the same time] in that case, you need to take a NOC [no objection certificate] from all such owners and can sell it off, BUT,
3. If any of the co owners deny then you cannot sell of the property [even if you wish to], HOWEVER,
4. If such property or your share in such property can be separated then you can sell of your share in the property or the portion or part of the property which you own.
Given that your father has mentioned to transfer the shares to the eldest brother, the rights of the share certificate rests with him. Others are just nominees tot whom such right shall be divided 25%
You can have a right in share certificate in either of the cases
1. Death of your brother [after which the nominee gets the right], OR,
2. If your brother relinquishes his rights by way of writing [in such a case, all the eligible nominees will be entitled to get their share]
Coming to the Question of Share Certificates
1. All the people who are nominated are liable to get the share
2. If any of the nominee is not alive then he or she is not liable for such share, BUT,
3. If before such death, the nominee has assigned someone else to get a right in that share, then, his or her rights will get transferred to such further nominee [in case there is no further nominee, the right ends with such death]
Can you get all the shares ?
YES, but for that
1. there should be no other nominee living at the moment or, no further nominees should have taken place
2. The nominees who are legally entitled to their rights [alive at such time] issue a NOC stating that they do not have a problem if all the shares get transferred to your name and they are relinquishing their rights to such nominations.
Hope this helped.
Shreyash Mohta.
Please do rate me if you liked the advice on the vidhikarya portal.
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