The Personal Shopper staff at Cyril Amarchand Mangaldas shares their feedback and opinions shared in an article within the following Q&A which was printed by the Mint Newspaper on 14th April, 2021 and the net version of the identical will be discovered right here.
I’m 76 and within the technique of writing my will. At current, I’ve a residential condo in my title, together with my spouse and elder daughter. As per my will, can I assign this property to my spouse and youthful daughter (and never my elder daughter)?
—Identify withheld on request
We’ve assumed that you’re Hindu by religion and the residential property is “self-acquired” (i.e. not Hindu Undivided Household/ancestral property). On the premise of those info, we word that the property is collectively owned by you, your spouse and your eldest daughter. Accordingly, your possession curiosity within the property is proscribed to one-third of the whole curiosity.
Accordingly, your proper to bequeath an curiosity within the property is proscribed to solely your restricted share. Below your will, you possibly can bequeath your share to a legatee of your selecting, to the exclusion of others. Nonetheless, please word that your spouse and your eldest daughter will proceed to personal their respective shares, no matter the way you select to bequeath your curiosity.
Do you have to bequeath your one-third curiosity within the property beneath your will to your spouse and youngest daughter (to the exclusion of your eldest daughter), the possession will finally replicate as your spouse proudly owning one half of the property; your eldest daughter persevering with to personal one-third; and your youngest daughter proudly owning one-sixth of the property.
We’re 4 brothers and two sisters. Our father handed away 4 years in the past and mom died six years in the past. Now, all of us have determined to partition the property that our father had created. It features a plot of land, which additionally had a store. One in all my brothers stayed with our mother and father. All different siblings are in several cities or nations. After we mentioned the division, my brother who stayed with our mother and father revealed that father had given him the store through present deed. We have been all shocked by this. All of us need an equitable distribution. Can we problem the present deed and ask the court docket to revoke it, as this was made when father was 90 and bedridden. What are the opposite choices that we’ve?
—Identify withheld on request
The answer would lie within the id of the property within the fingers of your father on the time of his dying. Primarily based on the info offered, it seems that as your father had “created” a property on the land, the store was subsequently “self-acquired”.
For the aim of our response, we’ve assumed that you simply and your loved ones are Hindu by religion. Below Hindu legislation, an individual has absolutely the proper to present any a part of their self-acquired property. Any problem to such a present must be finished on the deserves of the matter itself, together with factual arguments on the capability of your father to enter into the present deed, contemplating his well being on the time. An extra problem might lay on the deserves of the present deed, i.e., if it was entered into by your father beneath duress, or by train of fraud, misrepresentation, and so forth., or if the present deed was insufficiently stamped. That mentioned, this is able to require session with a counsel, since an examination into the particulars of the deed are essential previous to sustaining such a problem.
Within the occasion that the present is held to be legitimate, the stability property would devolve in your siblings and your self, with every buying one-sixth share (minus the store).
Nonetheless, if the property was acquired by your father, however thereafter added to any HUF, then a present in favour of your brother can be void. The evaluation of the id of the property and the present deed can be crucial.