We have 3 shares in the society belonging to my wife, son (Indian citizen) and me. We had wished to allot our shares to my two daughters who are US citizens. My son has objected, he wants his fair share from us too, including his 1/3 share. My wife passed away intestate in the meanwhile.
He has threatened to file partition papers, is it still possible to give my share and my wifes share to the two daughters. Thereby giving them the controlling right on the property. They have promised me they will not sell, but my son is intent on selling the property since he lives in US, but hasn’t relinquished his Indian citizenship.
Please advise what is best in my situation,
I C Naik
Going by the reaction of Shri Girish Raj (GR in short) to his son’s threat of partition it appears that the flat is an HUF Property – 3 coparceners having equal shares namely GR. Wife and NRI son. Prior to the death of the parents of Girish Raj (assumption based on facts provided with regret), there were 5 coparceners which included the grandson. In that sense a mention of 1/3 shares leads to assumption of a notional partition of the ancestral flat, after passing away of both the parents of GR.
GR’s wife mustn’t have contemplated untimely death, so she did not make a will of her 1/3 share which she desired to pass on to the two daughters to the exclusion of her son for some reason. She could have easily done that. It seems she had convinced GR also to do the same and GR (being her late wife’s wish) is keen to pass on 2/3 of the flat to his daughters. The Couple always cherished the property and didn’t want controlling interest to vest in sons hands. He is not sure if he could gift them. And son’s threat has baffled him. GR being unfamiliar with the succession Act, is avoidably panicky.
It is quite safe to assume that GR is the main member in the society records, and in control of HUF property as far as the MCS Act 1960 was concerned. Assuming his son is associate member, he has no control on the HUF property under the MCS Act 1960. But in the matter of the succession to flat the succession Act is supreme and binding on the managing committee of the CHS when it comes to.
In Mitakshara HUF property its coparceners’ notional shares fluctuate with every birth to a coparcener and death of a coparcener till final partition is given effect to. It can be safely assumed that both the father and son are unaware of the succession Act as also of a very significant change in the Succession Act. In 1994 and 2005 the succession Act was amended by the State Assembly and Parliament respectively to bring in gender equality in law on succession to intestate properties. Now daughters are coparceners in HUF property of the in-laws as also of the parents and on partition of the coparcenary property they get an equal share as the son.
As one least probable solution is; GR restricts his idea of retaining the flat in the family only during his life time and after him leave to the HUF of three siblings to decide. He is legally entitled to propose a deemed partition recording in a notarized document ( which was never done before) assigning to each coparcener ¼ share of the HUF Property. Son will not get share of his dream, i.e. 1/3+ but much less than that. He can state a condition that during the life time of GR nobody will press for disposal of the flat. But Son being unaware that his two sisters also have a share as much as he has, he does not want that 2/3 is gifted away by his father as under a legal partition he can get away with half the share with half that of GR,
GR wants our help to pass on 2/3 of the share in the flat to his two daughters.
GR as a main member in the CHS has a right to file nominations assigning the property right in the flat as he were to choose. The HUF having three coparceners before the death of the wife of Girish Raj, is now of 4 coparceners due to amendments to the succession Act.After recording a notarized deed of notional partition, GR can file nomination in favour of 3 children with shares as under. Daughters 1/4+(50% of his 1/4share)1/8=3/8 to each of the 2 and ¼ to Son. He should nominate elder daughter to be the Original member and the other daughter and son as Associates.
Let the son go to the court pressing partition immediately, the outcome could not be different.