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Disputed property title could block your ownership

Source : BUSINESS_STANDARD
Last Updated: Mon, Dec 10, 2012 03:51 hrs

pA day after Ajit Raut sold his ancestral property in Hubli two of his paternal aunts contested the sale in the subordinate court there This UK resident was taken aback as he had informed both the aunts and had also asked if they wanted some stake in the property Both had declined then a year agoppRauts legal counsel says this case does not have much merit Married women have an equal right of inheritance in an ancestral property the lawyer says but there is a clause Only women born after 1956 get this rightppThe Hindu Succession Act 1956 did not give a married woman the right to ancestral property till it was amended in September 2005 to provide the right to parental property for daughters since birth Raut might or might not win the case But he would have been better off if he had recorded the aunts&rsquo agreements on paperppIt is wise to remember that in the case of an immovable property it is safer to get a no-objection certificate NOC from all the parties concerned or a copy of the resolution passed by themppDelhi-based Supreme Court advocate Bharat Chugh says &ldquoIf a property buyer is able to prove in court that he did the &lsquobasic minimum due diligence&rsquo at the time of buying the property his title is safe The law favours a vigilant buyer&rdquoppHowever most property buyers dont do this Such buyers would have problems with respect to the title Heshe might not be able to get a free and marketable title says Ameet Hariani managing partner of Mumbai-based law firm Hariani & Company When the title to the property is clear and the person buyer has the right and capacity to transfer the same he is said to have a marketable titleppWhen looking to buy a second-hand property say experts find why it is being sold Under the Hindu law a karta can sell a property without any family members consent only in certain circumstances In times of distress emapatkaleem for the sake or benefit of the family and for pious purposes emdharmartheem This is according to emmitaksharaem one of the two schools of traditional Hindu Law which means &ldquotime of distress&rdquo that affects the familyppA emkartaem of a Hindu undivided family HUF has all the powers to manage the family and its assets being the head of the family The karta is usually the eldest male member The joint family property vests in the family and its coparcenersppstrongKarta in a Hindu familystrongbr A emkartaem is not an absolute independent individual owner of the property Each coparcener has a share right title and interest in the ancestral propertyppA buyer should find out if the property is ancestral inherited or self-acquired In an ancestral property the emkartaem&rsquos identity and reason for sale has to be enquired Get it in writing from the karta that he has the coparcenors&rsquo consents Legal experts also advise finding out about the family and meeting coparcenors through a third-party friend or relative to know if they are aware and in agreement with the salepp&ldquoMany times coparcenors may have received their share of the property But that does not mean they cannot contest the property sale Heshe may not be satisfied with his share So ask the emkartaem and the corparcenor if they are fine with the sale&rdquo says a law consultantppChugh explains that the eldest male member in three generations &mdash great grandfather grandfather father and son &mdash are called coparcenors They have a definitive right to the ancestral property from the time of conception After 2005 sons and daughters are equal coparcenorspp&ldquoIn the case of disputes relating to inheritance insist on a Probate or Letters of Administration These are court orders recognising a person as being authorised to deal with the property The consents of persons in occupation of the property should also be taken&rdquo says HarianippThe wife of a emkartaem can also contest the sale of an ancestral property if the emkartaem is dead and the children sell the property without her consent If senior family members older that the seller are alive it is better to have a word with them personally In India most parents dont have a problem if their children sell assets for funds&rdquo says the law consultantppIf it is an absolute property a woman can contest a sale only if the property is in her name If it is a female coparcener a property loses its ancestralcoparcenary character once she receives it It will be her absolute propertyppIn the case of a male coparcenor a property ceases to be ancestral if he remains unmarried or does not have children The ancestral property inherited by him may become an individualprivate propertyppA self-acquired property earned by own efforts belongs only to the sole owner and nobody can exercise any right on it except for his divorced or separated wife and children Hariani says sale of a property jointly held by husband and the wife requires both to consent If the property is only in the name of the husband the wifes signature is usually not obtainedpp&ldquoBut in case of a dispute the wife can claim right of residence in the matrimonial home Here even if the husband-wife relationship is not known ask for the wifes consent In fact ask for consent of all persons residing in the apartment&rdquo he advisesppChugh recalls how an 18-year-old had contested the partition of an ancestral property done by his father when the child was just born Children have a right over ancestral property from the time of their conception and can contest the sale of such property between the ages of 18 and 21 In such cases a buyer would have very little controlppSimilarly children from a second marriage or wedlock are legitimate though a second wife does not have any right on her husbands property A live-in partner if a woman has all the right Therefore in the case of a single male or female property seller it would be wise to ask the marital status relationships and whether or not there are childrenhr pp alignrightemSome names have been changed on request as the cases are subjudice emp

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