If you are stuck in such a situation, here is what to do.

A complex family property issue has arisen in Navipur. The patriarch of a family, Mr. Ramesh, purchased a house but passed away without leaving a will. He was survived by six Class I heirs under the Hindu Succession Act: his son, Mr. Alok, and five daughters. This meant each inherited a 1/6th share in the property.

Mr. Alok, who resides in the house with his family, has children from two marriages. From his first marriage, he has a son, Mr. Brijesh. From his second marriage, he has two sons, Mr. Chetan and Mr. Dheeraj. A significant point of contention is that Mr. Brijesh allegedly does not take care of his father, Mr. Alok, leading to a strained relationship.

Over the years, the ownership of the undivided property has evolved. One of Mr. Alok’s sisters gifted her 1/6th share directly to her nephew, Mr. Brijesh. Three other sisters executed relinquishment deeds, transferring their respective 1/6th shares to their brother, Mr. Alok. The last sister granted Mr. Alok a Special Power of Attorney (SPA) for her 1/6th share, which explicitly allows him to execute a gift deed on her behalf.

Currently, Mr. Alok controls a 5/6th share of the property (his original 1/6th, plus 3/6th from relinquishment deeds, and 1/6th via the SPA). Mr. Brijesh independently owns a 1/6th share from the gift he received from his aunt. Due to the neglect he has faced, Mr. Alok wishes to transfer his entire 5/6th share to his other sons, Chetan and Dheeraj, effectively disinheriting Mr. Brijesh from this portion of the property.

Advice in such cases

Navigating family property disputes requires a careful and strategic approach. Here are some general steps to consider:

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Understand the Nature of the Property: It is crucial to determine what part of the property is ancestral and what part is self-acquired. Property inherited from a paternal ancestor up to three generations is ancestral. Property acquired through a gift or relinquishment deed is treated as self-acquired property for the recipient. A person has full rights to dispose of self-acquired property as they wish, but an ancestral property share comes with birthrights for the next generation.
• Document Everything: Gather all relevant documents, including the original sale deed, death certificate of the grandfather, relinquishment deeds, gift deeds, and the Special Power of Attorney. Clear documentation is the foundation of any property claim.
• Consider a Partition Suit: If the property is undivided and co-owners cannot agree, filing a suit for partition in a civil court is the legal way to divide the property according to the respective shares of the owners.
• Explore a Will: For any self-acquired portion of the property, a person can write a Will to bequeath it to anyone they choose. This is a strong tool for ensuring one’s wishes are carried out after their demise.

Applicable Sections of Law

This case primarily involves civil laws related to property and succession:

• The Hindu Succession Act, 1956: This Act governs the succession and inheritance of property. Section 6 deals with the devolution of interest in coparcenary (ancestral) property, while Section 8 outlines the general rules of succession for males dying intestate. The shares Mr. Alok and his sisters inherited are ancestral, but the shares Mr. Alok received via relinquishment are his self-acquired property.
• The Transfer of Property Act, 1882: This Act governs the transfer of property between living persons. Sections 122 and 123 are particularly relevant as they define what constitutes a valid gift and mandate that a gift of immovable property must be made through a registered instrument.
• The Registration Act, 1908: This Act requires that documents like gift deeds and relinquishment deeds for immovable property be compulsorily registered to be legally valid.
• The Powers of Attorney Act, 1882: This Act governs the creation and scope of a Power of Attorney. The terms of the SPA are critical to determine if Mr. Alok has the legal authority to gift his sister’s share.

If you are the complainant

If you are in Mr. Alok’s position and wish to transfer your share while excluding one heir, here are the steps to consider:

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Verify the SPA: Have a lawyer thoroughly review the Special Power of Attorney to confirm that it is valid and explicitly grants you the power to execute a gift deed for your sister’s share. Any ambiguity could be challenged later.
• Execute a Clear Gift Deed: You can execute a gift deed for your self-acquired portions (the 3/6th from relinquishment deeds and the 1/6th from the SPA, if valid) in favour of your other sons. For your own 1/6th ancestral share, you can also gift it, as you are the absolute owner of that share. The gift must be accepted by the donees (your other sons) and the deed must be properly witnessed and registered.
• Consider a Will: As an alternative or supplementary measure, you can execute a Will, bequeathing all your self-acquired property and your share in the ancestral property to your chosen heirs. A Will only takes effect after death.
• File for Partition: To physically separate your 5/6th share from Mr. Brijesh’s 1/6th share, you can file a suit for partition. This will lead to a court-ordered division of the property, giving you clear title over a demarcated portion, which you can then transfer without interference.

If you are the victim

If you are in Mr. Brijesh’s position and are being excluded, here are your potential legal recourses:

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Assert Your Right: You have an undisputed 1/6th share in the property that was gifted to you by your aunt. This cannot be taken away by your father.
• Challenge the Transfers: You could potentially challenge the gift deed your father makes. Grounds for challenge could include undue influence, coercion, or fraud. You could also challenge the validity of the SPA if it is not properly executed or registered.
• File a Suit for Partition: You have the right to file a suit for partition to get your 1/6th share physically demarcated and separated. During this suit, all ownership claims will be examined by the court.
• Claim Your Ancestral Right: While your father can gift his own share, you may have a right by birth in the 1/6th share that he inherited from your great-grandfather. This is a complex area of law, and a lawyer can advise if you have a valid claim to challenge the transfer of this specific portion.

How the police behave in such cases

Property disputes of this nature are civil matters, and the police have a very limited role. They will not intervene to decide who owns which share or to enforce a particular person’s claim to the property. Their involvement is typically restricted to situations where there is a potential breach of peace, criminal trespass, violence, or a specific criminal complaint like forgery of documents. If approached, the police will almost always advise the parties to seek resolution in a civil court.

FAQs people normally have

Here are answers to some common questions in such situations:

What evidence is required?

To pursue or defend a claim in court, you will need comprehensive evidence, including:

• Property Title Deeds: The original sale deed in the grandfather’s name.
• Death Certificate: Proof of the grandfather’s passing.
• Legal Heir Certificate: To establish the line of succession.
• Registered Deeds: All registered Relinquishment Deeds and Gift Deeds.
• Power of Attorney: The original SPA document.
• Property Tax and Utility Bills: To show who has been in possession and paying for the property’s upkeep.
• Correspondence: Any letters, emails, or messages that can serve as evidence of intent or dispute.

How long will the investigation take?

This is a civil litigation matter, not a police investigation. The timeline for a resolution can vary significantly. A suit for partition is a full-fledged civil case that can take several years to conclude, often between 3 to 10 years or more, depending on the complexity of the case, the number of parties involved, and the workload of the court. The process involves filing the suit, replies from the other parties, framing of issues, evidence, arguments, and finally, a judgment, which can be followed by appeals.

Advocate Sudhir Rao, Supreme Court of India