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HOW TO OBTAIN A LEGAL HEIR CERTIFICATE IN INDIA?

HOW TO OBTAIN A LEGAL HEIR CERTIFICATE IN INDIA ?After a sudden demise of a family member, his/her legal heirs must obtain a legal heir certificate in order for transferring the assets of the deceased. In order to establish the relationship between the deceased and his/her legal heirs legal heir certificate is a very important document. After obtaining the death certificate from municipality/ municipal corporation, it is necessary for the successors to apply for this legal heir certificate in order to claim their right over the properties and dues of the deceased person. Generally, a lawyer helps to draft and register a legal heir certificate. WHO ARE LEGAL HEIRS? The persons hereinafter mentioned are considered to be the legal heirs and can claim a legal heir certificate in India : 1. Parents of the deceased2. Siblings of the deceased 3. Spouse of the deceased4. Children of the deceased HOW LEGAL HEIR CERTIFICATES ARE DIFFERENT FROM SUCCESSION CERTIFICATES? Legal heir certificates are different from a succession certificate and has its own limitations.• Legal heir certificates can be used in matters such as claiming employee benefits, insurance claims and for property claims. • Unlike Indian Succession act a legal heir certificate is not a conclusive proof under the law of succession in India USES OF LEGAL HEIR CERTIFICATESA legal heir certificate identifies the rightful successors who can claim the assets/properties of the deceased person.To lay a claim over a deceased person’s property all eligible successors must have this certificate for :1. Claiming insurance2. Sanctioning and processing family pension of the deceased employee. 3. Transferring the deceased person’s assets and properties to his /her successors. 4. Receiving dues such as gratuity, provident fund etc from the government. 5. Receiving salary arrears of the deceased. 6. Gaining employment based on compassionate appointments. PROCEDURE FOR OBTAINING LEGAL HEIR CERTIFICATETo obtain Legal Heir certificate You must approach the area/Taluk Thasildar, or from the corporation/municipality office of your area, and also the District civil court. The certificate names all legal heirs of the deceased person and will be issued to you only after a proper enquiry. To obtain a Legal Heir Certificate you must follow the steps listed below:1. APPROACH THE TALUK OFFICEThe applicant has to visit the Tehsildar or Taluk office. An alternate option is when the he chooses to approach a lawyer from the District Civil Court.2. RECEIVE THE APPLICATION FORMThe applicant will have to obtain the application form from the concerned Tehsildar officer.3. ENTER THE DETAILSThe applicant then will have to enter all the required details in the application form.4. ATTACH THE DOCUMENTSOnce all the details are entered, the applicant will have to attach all the mandatory documents to the application form.5. AFFIXING STAMPThe applicant will have to to affix a stamp of Rs. 2 in the application form.6.SUBMIT THE APPLICATIONOnes this is done, he applicant has to furnish the application form to the authorized officer in the Tehsildar office.7. VERIFICATION PROCESSThereafter the application is verified by the Village Administrative Officer and Revenue Inspector.8. ISSUING THE CERTIFICATEAfter completing all the verification processes, the certificate will then be issued by the concerned authority mentioning all the legal heirs of the deceased. Generally it takes 30 days to obtain a Legal Heir Certificate but you have to approach the Revenue Division Officer (RDO) or the sub collector if there is an unnecessary delay or the concerned authorities fails to respond.REQUIRED DOCUMENTS TO OBTAIN A LEGAL HEIR CERTIFICATEThe following documents are required to be submitted to the appropriate authority in order to obtain a legal heir certificate: • Signed application form•Identity/address proof of the applicant( voter id/ Aadhar card/driving licence/passport or any other government issued identity card) • A self undertaking affidavit• Death certificate of the deceased• Address proof of the deceased( any valid identity proof or telephone/mobile bill, gas bill, bank passbook with the name and address of the deceased) • Date of birth proof of all the legal heirs. ( Birth certificate , school transfer/leaving certificate, PAN card, passport, etc)

Posted By

Sayaree Ganguly

4 weeks ago

PROPERTY PARTITION IN INDIA - LAWS AND TRADITION

PROPERTY PARTITION IN INDIA- LAWS AND TRADITION Partition of a property means bringing the joint status to an end. On Partition the joint family ceases to be joint, and nuclear families or different joint families come into existence. Under the Dayabhaga school, when coparceners Partition, it means the division of property is done in accordance with the specific shares of the coparceners since the Dayabhaga coparceners have ascertained and specified shares. Whereas under the Mitakshara school, Partition of property does not necessarily mean division of property into specific shares, it also means division of status or severance of status or interest. It is because the interests of the Mitakshara coparceners is unspecified. Thus, under the Mitakshara school, partition means two things: 1. Severance of status or interest 2. Actual division of property in accordance with the shares so specified. It is also known as partition by metes and bounds. DIFFERENT SCHOOLS OF LAW OF PROPERTY AND PARTITION. “Dayabhaga” is a term derived from a text written by Jimutavahana. On the other hand, “Mitakshara” is a term derived from the name of a commentary written by Vijnaneswara, on the Yajnavalkya Smriti. These two Schools govern the Law of Succession of the Hindu Undivided Family [HUF] under Indian Law. The Dayabhaga School of law is observed only in Bengal and Assam. Whereas Mitakshara School of Law is observed in all the other parts of India. The Mitakshara School of Law is further divided into the following : 1. Benares, 2. Mithila, 3. Maharashtra and 4. Dravida The differences between the Dayabhaga and the Mitakshara Schools of Law may be categorized under the following: -JOINT FAMILY – According to the Mitakshara Law School a joint family refers only to the male member of a family and extends to include the following : 1. Son, 2. Grandson and 3. Great-grandson. They collectively have co-ownership/Coparcenary in the Joint Family. Thus, a son by birth acquires an interest in the ancestral property of the joint family. Under the Dayabhaga School of Law the son has no automatic ownership right by birth but he acquires the same after the demise of his father.In the Mitakshara School the father’s power over the property is qualified by the equal rights by birth enjoyed by the following: 1. A son, 2. A grandson and 3. A great grand-son An adult son has the right to demand his partition during his father’s lifetime or during the lifetime of his three immediate ancestors. He has a say in the disposition of the family property and can oppose any unauthorized disposition of ancestral or family property. This is not possible under the Dayabhaga School of Law as the father has centralized and full power over the family property till his death.COPARCENARY/CO-OWNERSHIP:- Under the Mitakshara School of Law, all the members of such Joint family enjoy coparcenary rights during the lifetime of the father. Under Dayabhaga School of Law when the father is alive the sons do not have any coparcenary rights but acquire it on the death of the father. In the former School of Law, the Coparcener’s share is not defined and cannot be disposed. In the latter the share of each Coparcener is defined and can be disposed.SUBJECT MATTER OF PARTITIONAs a general rule, the entire joint family property is and the separate property of the coparceners is not, subject to partition. A plaintiff seeking partition must prove the existence of a joint family. In the case where existence of a joint family is not disputed, every coparcener is entitled to equal share. However, there may be certain species of joint family property which are by their very nature is not capable of division, then such properties cannot be divided. In respect of those properties, three methods of adjustments are available: 1. Some of these properties may be enjoyed by coparceners jointly or in turns. 2. Some of these properties may be allotted to the share of coparcener and its value adjusted with the other property allotted to other coparceners. 3. Some of these properties may be sold and the sale proceeds distributed among the coparceners. However, before the division of property can take place, the Shastrakars have ordained that out of the joint family properties, provisions should be made for certain liabilities of the family. These liabilities fall under the following heads: 1. DEBTS - A provision for the payment of outstanding debts binding on the joint family should be made. No provision is to be made for the individual debts of the coparceners. 2. MAINTENANCE - There are certain members of the joint family who do not take a share but have a right to be maintained out of the joint family funds. A provision is to be made for their maintenance. 3. MARRIAGE EXPENSES OF THE DAUGHTERS -  When the coparcenary consists of father and sons, a provision should be made for the marriage expenses of the daughters of the father.  4. PERFORMCE OF CERTAIN CEREMONIES AND RITES - If the Partition takes place among the brothers, a provision has to be made for the funeral expenses of their mother. PERSONS WHO ARE ENTITLED TO A SHARE ON PARTITION. After the amendment act of 2005, a daughter since would be a coparcener, shall have a right to ask for Partition. As a general rule, both under Mitakshara and the Dayabhaga schools, every coparcener has a right to Partition and every coparcener is entitled to a share on Partition. Apart from the coparceners, no one else has a right to Partition. No female except the daughter has a right to Partition but if Partition takes place, there are certain females who are entitled to a share. These females are: father’s wife, mother and grandmother. FATHER- The father has not merely a right to partition between himself and his sons but he also has the right to effect partition among the sons inter se. This seems to be the last survival of father’s absolute powers. The Mitakshara expressly confers this power on the father in respect of not only father’s separate property but also in respect of joint family property. SON, GRAND SON AND THE GREAT GRAND SON - Under the Dayabhaga School, there is no coparcenary consisting of the father and his lineal male descendants and therefore sons, grandsons or great grandsons have got no right to Partition. On the other hand, under the Mitakshara School, son, son’s son, son’s son’s son has a right to Partition. MINOR COPARCENERS - Hindu Law makes no distinction between a major coparcener and a minor coparcener in respect of their rights in the joint family property. As in other matters so in Partition the rights of the minor coparceners are precisely the same as those of the major coparceners. The minor coparceners have also a right of Partition. A suit for Partition on behalf of the minor by his next friend or guardian. MODES OF PARTITION  A Partition can be made by a definite, unambiguous declaration of intention by any coparcener to separate himself from the family. If this is done, it would amount to division of the status of the property, whatever mode be used. GIVEN BELOW ARE THE VARIOUS MODES USED IN CASE OF THE PARTITION OF A PROPERTY. PARTITION BY SUIT - A Partition suit (or partition and contribution suit) is a lawsuit that a person files in order to force the division of real property. It also enables that person to get contribution from the other owners for expenses of the property if others are not paying their fair share. In a suit for Partition, the initial burden is on the plaintiff to show that the entire property is a joint family property. PARTITION BY AGREEMENT - A Partition may be affected between the parties by an agreement. An agreement between the coparceners to hold and enjoy property in defined shares as separate owners operate as a Partition although actual division of properties might not have taken place. In such a case, the interest of each coparcener is served though the property remains physically undivided. If such Partition is made through a written agreement, registration is necessary. ORAL PARTITION - There is a long line of cases holding the view that oral Partition can be validly made. Since partition is not conveyance of property, the transfer of property act doesn’t apply and there is no other law requiring a partition to be evidenced in writing. It is in the nature of mutual renunciation of rights and thus can be made orally. UNILATERAL DECLARATION - The communication of intention is necessary, whatever mode of Partition one may use. If a coparcener separates itself by making a declaration to the other coparceners, this declaration remains valid. PARTITION BY ARBITRATION - A Partition may be affected by arbitration. If members of joint family enter into an agreement under which they appoint arbitrators for dividing the joint family property among themselves, the severance of status takes place from the date of the agreement. PARTITION BY CONDUCT - The severance of status may also take place by conduct. The conduct like a declaration of intention, may be unequivocal, explicit and definite. From what conduct severance of status may be deduced will vary from case to case. There can be numerous instances of conduct from which inference of severance can be drawn. AUTOMATIC SEVERANCE OF STATUS - Conversion of a coparcener to a Non-Hindu religion (i.e. Islam or Christian etc.) operates as an automatic severance of status of that member from others but it does not amount to severance of status among the other members inter se. From the date of conversion, he ceases to be a coparcener and therefore loses his right of survivor ship. He is entitled to receive a share in the joint family property as it stood at the date of conversion. Exactly, the same result follows if a coparcener marries a Non-Hindu under the Special Marriage act, 1954. REGISTRATION OF PARTITION DEEDIt is a well-established proposition of Hindu law and when Partition is affected by a deed of immovable property worth Rs 100 or more, registration is compulsory.  

Posted By

Sayaree Ganguly

1 month ago

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Shayamnarayan Shukla

ADVOCATE
Exp
Kanpur , Uttar Pradesh

Specialization

  • Property
  • Criminal
  • Civil
  • Cheque Bounce
  • Family
I have 25 year experience as an advocate and practicing in criminal civil property as well as matrimonial matter and specialist of food adulteration ( fss act) and N.I.Act. View Full Profile
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  • What is Property Law?
  • What are the Applicable Laws in Relation to Property?
  • Is Registration Compulsory while buying a property?

Property and resources govern the events of humanity. As per Montesquieu, ‘one would forget sooner the murderer of his father than the man who robbed him of his property’. Hence, there are well defined statutes governing interactions involving properties. The major legislation in this regard is Transfer of Property Act. For the scope of this article; Partition, Will, Intangible Property, Succession, Property Dispute etc. shall not be discussed as they are covered under specialised statutes and/or recognised legal practises.

What is Property Law?


Property law is the area of law that governs the various forms of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights, and obligations thereon.

Laws applicable to Property related Matters?


  • Transfer of Property Act, 1882
  • Indian Easement Act, 1882
  • Registration Act, 1908
  • Stamp Act, 1988
  • Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (at instances of land acquisition)
  • Indian Contract Act, 1872
  • Specific Relief Act, 1963 –Part II

What does Constitution of India Reveal about Property?


Initially, Right to Property was a fundamental right under the Constitution in the form of- Article 19(f) which spoke about the right to acquire, hold and dispose of property, subject to reasonable restrictions & Article 31 which, as originally enacted, said that no person shall be deprived of his property except by authority of law. Forty Fourth Amendment to the Constitution of India, deleted Article 19(1)(f) and Article 31[Article 300-A is now the provision regarding right to property]. The current position of the Supreme Court on interpretation on the right to property can be gleaned from one of the few direct judgements on property after the 44th Amendment, particularly the case of ‘Jilubhai Nanbhai Khachar Etc. v. State of Gujrat And Anr. Etc.’. This case dealt with mines taken by the State under legislated laws from erstwhile revenue farmers and upheld the right of the State to do so under Article 300-A, not entertaining any discussion on adequacy of compensation. Among other things, it is unequivocally held that the right to property under Article 300-A is not a “basic feature or structure of the Constitution” and that the Legislature has power to acquire the property of private person exercising the power of eminent domain by a law for public purpose.

What are the Basic Principal of Property Law?


  • Immovable property does not include standing timber, growing crops or grass as per Section 3 of the Act.
  • Suresh Chand v. Kundan, 2001 – a portion of land with saplings in it was sold. The seller later argues that the objection was to sell land without trees, and asked for a type of compensation for the extra gain which the other party is getting. Court held that in absence of any express/implied intention in the agreement, it would be taken that the land along with saplings standing on the land which subsequently grown into trees were sold.
  • At instances of conflict between Muslim Law & Transfer of Property Act, it is the Muslim Law which shall have prominence.
  • Future properties cannot be transferred, for example, Spes Successionis is a void transfer
  • K. Muniswamy v. K. Venkataswamy – on grounds of sound public policy, total restraint on the right of alienation in respect of immovable property which prevents free circulation is to be held void.
  • Section 108 of the TRANSFER OF PROPERTY ACT, 1882 enumerates the rights & liabilities of lessor & lessee.

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