Ashish Kumar Pandey
Asked January 05, 2017

Contested Intestate Succession

  • 2 Answers
  • 937 Views

Hi, my grandfather had purchased a flat in 1973 ,he died in 2011 and the legal heir was my grandmother and even she died on 2015 keeping me as an nominee in society for a this flat by submitting nomination form in her presence . now her two daughters are demanding for a share in it.my grandmother died without making any will.As one my aunty had sent an intimation letter to society regarding non transfering of flat to any one name. my father is not ready to give the share.kindly guide me

Answers 2

In the present situation the question is whether you have a right over the property as a nominee registered with the soceity or your aunts have the right as per the succession laws in the country.

 

In the case of Shri Ashok Chandra Aggarwala v. Delhi Administration and Ors. ((1985)ILR 1Delhi796), the Delhi High Court held that an interest of a member of a cooperative society in the lease of the property held by him can devolve by testamentary or intestate succession and a third kind of succession by nomination cannot be created under Section 26 of the Cooperative Societies Act. Considering the case of Sarbati Devi and Anr. v. Usha Devi AIR 1984 SC 346 where the Supreme Court interpreted Section 26 of the said Act and Rule 35 of the Delhi Co-operative Societies Rules, the Delhi High Court in Abhay Sapru vs Chitralekha Bakshi ( 2008(102)DRJ744) relied on Sushila Devi Bhaskar v. Ishwar Nager Cooperative House Building Society Ltd. and Ors. 45 (1991) DLT 318, to hold that despite nomination in favor of a person, the property or the amount of the deceased, can be claimed by the heirs of the deceased in accordance with law of succession governing them. The Court in the case of Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani ((2000) 6 SCC 724) identified that the right of the nominee is merely to get recognised as the person who is charged with the responsibility of administering the estate in accordance with the Law of Succession.

 

Therefore, as a nominee you do not have a right of ownership over the property. After your grandmother's death since she did not leave a will, the property will be transferred as per the law of succession applicable. Assuming your grandmother was Hindu, the Hindu Succession Act will apply and her property will be equally divided between her children i.e. your father and his two sisters. Each will be entitled to one third share in the property. Being the nominee you have no right over the entire property. You will be entitled to the one third share of the property which will be given to your father.

 

Even if your father is not willing to share the property, his sisters have the right to make a claim and file a suit for partition. In the absence of a registered will in your favor or in favor of your father, the Court will most likely order for a partition.

 

 

Research by - Saumya Kumar, Lawfarm Team

Agree Comment 1 Agree over 3 years ago

You seem to have mistook a fact.

Your Grandmother was never the sole owner of the flat. She was a co-owner alongwith her son and two daughters. After your Grandfther's death (I presume that he was a Hindu died intestate) his estate (here - flat premises including shares in share capital of Society) devolved equally upon his four heirs (widow, a son and two daughters) falling in Class I category under Hindu Succesion Act. Succession to the flat first opened on the date of death of Grandfather. It is not mentioned in the question as what documents were prepared and submitted at the time of transfer of shares in Society in your Grandmother's name. Assuming there is no relinquishment or release executed by your  Aunties, all four heirs were continued to be the co-owners. Even if the share certificate was transferred in the sole name of Grandmother, that is not sufficient to end the shares (co-ownership rights) of your Aunties and your father. As Grandmother died intestate, her 25% share is devolved equally to her three heirs (again on to your father & two aunties). Thus now they are three co-owners of the flat.

To sum up -

Your father and your two aunties have equal shares (rights) i.e.1/3rd share each in the flat.

The fact of making  you a nominee  by your Grandmother, will have no effect.

You are not heir to your Grandmother's estate. Heirs of a female Hindu  (section 15 & 16 of  Hindu Succession Act) differs than that of a male Hindu. As per said provisions, your father and aunties are heirs of your Grandmother.

You, even as a nominee has no right over the flat. 

As your aunties have put in objection for transfer of share certificate in your sole name, your application to society will fail. Your Aunties may adopt a course of action (e.g. partition suit) suitable and available to them.

In current situation if you are residing in that flat and you need this as dwelling house, it is advisable to choose one of the two options available to you :-

1) Your father should apply for membership to society with the mention of the names & rights of his sisters whose names will also be recorded in the share certificate alongwith your father,

 Or ,

2) negotiate with your aunties to execute relinquishment deed so as to acquire permanently their shares in your father's favour. This will involve registration and stamp duty. 

Case law - Not necessary.

Regards.

 

Agree Comment 1 Agree over 3 years ago

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