Lawfarm Team
Asked January 08, 2016

rights of daughter in law in family property

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My sister was married with Mr. H in 2013. At the time of marriage, Mr. H’s father, Mr. F assured us that the newly wed would be living in a separate house of their own. But now I hear that Mr. H’s father is planning to disown him from the property and this has got all of us worried. Not only has my sister not been given a new property, she also stands the chance of being thrown out of her matrimonial home.  Mr. F inherited this property from his father Mr. GF. So I want to know if Mr. F can disown Mr. H (and therefore my sister) from the property which he inherited from his father, Mr. GF? And if he can, what can we do to resist a legal order in his favour.

Answer 1

For the purpose of this answer, it is assumed that your brother in law (Mr. A) is a member of a Hindu joint family governed by Mitakshara Law under Hindu Succession Act, 1956. This assumption is being made, since you are a resident of Delhi and presumably do not have anything to do with the Dayabhaga school of Inheritance which apply to West Bengal, Orissa and parts of Assam[1])

The property described by you is a gift received by father of Mr. A from his grandfather, i.e great grandfather of Mr. A.

In the case of A. C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar[2], it was held that, any property which is transferred by the way of gift is considered to be self acquired property of the donee (the one who receives the gift) unless the donee clearly shows his intention of making that property ancestral/coparcenary. It was also held in this case that, when the father obtains the grandfather's property by way of gift, he receives it because the grandfather chose  to gift the land to him, and not because he is a son or has any legal right to such property. The interest which he takes in such property must depend upon the will of the donor.

Since the said property is a self acquired property, it will devolve/be transferred solely and absolutely as per the wishes of Mr. A’s father.

Situation 1: If Mr. A’s father dies without making a will (i.e., intestate), such property will devolve under general rules of succession prescribed under the Hindu Succession Act, 1956. According to Rule 2 of Section 10 of the Act, Mr. A falls under Class I heir of his father and the property will get equally divided amongst his siblings and surviving mother of Mr. A.

Situation 2: In case Mr. A passes away before his father, then Mr. A’s widow and his children inherit  from Mr. A’s share of that property.

Situation 3: If Mr. A’s father made a will regarding the said property, the property will devolve according to his will.

Mr. A can raise an objection to the “citation before grant of letters of administration” (in case a will exists) under section 235 of the Indian Succession Act, 1956 in case he feels that the will is coerced by any other sibling, made under undue influence, made out of mental incapacity or under some suspicious circumstances. “Citation before grant of letter of administration” is basically a no objection certificate obtained from the legal heirs regarding the distribution of the property as mentioned in the will. However, please note that the Apex Court has held that just the fact that natural heirs have either been excluded or been given a lesser share is not enough to challenge the will.[3]

The will can also be contested if it is not duly signed by the testator and the two witnesses who attested the will.

 Mr. A can file a civil suit (also called testamentary suit) under the Indian Succession Act and Civil Procedure Code for challenging the will. [4]

[1] The Law of Inheritance in Bengal, http://www.lawteacher.net/free-law-essays/equity-law/the-law-of-inheritance-in-bengal-equity-law-essay.php

[2] 1953 AIR 495 SC

[3] Savitri and others vs Karthyayani  Amma and others, Arising out of SLP (Civil) No. 3374 of 2005

[4] Please see, http://lawfarm.in/question/who-can-challenge-a-registered-document/

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