A day after Ajit Raut* sold his ancestral property in Hubli, two of his paternal aunts contested the sale in the subordinate court there. This UK resident was taken aback, as he had informed both the aunts and had also asked if they wanted some stake in the property. Both had declined then (a year ago).
Raut's legal counsel says this case does not have much merit. Married women have an equal right of inheritance in an ancestral property, the lawyer says, but there is a clause. Only women born after 1956 get this right.
The Hindu Succession Act (1956) did not give a married woman the right to ancestral property till it was amended in September 2005, to provide the right to parental property for daughters since birth. Raut might or might not win the case. But he would have been better off if he had recorded the aunts’ agreements on paper.
It is wise to remember that in the case of an immovable property, it is safer to get a no-objection certificate (NOC) from all the parties concerned or a copy of the resolution passed by them.
Delhi-based Supreme Court advocate Bharat Chugh says, “If a property buyer is able to prove in court that he did the ‘basic minimum due diligence’ at the time of buying the property, his title is safe. The law favours a vigilant buyer.”
However, most property buyers don't do this. Such buyers would have problems with respect to the title. He/she might not be able to get a free and marketable title, says Ameet Hariani, managing partner of Mumbai-based law firm Hariani & Company. When the title to the property is clear and the person (buyer) has the right and capacity to transfer the same, he is said to have a marketable title.
When looking to buy a second-hand property, say experts, find why it is being sold. Under the Hindu law, a karta can sell a property without any family member's consent only in certain circumstances: In times of distress (apatkale); for the sake or benefit of the family and for pious purposes (dharmarthe). This is according to mitakshara (one of the two schools of traditional Hindu Law) which means “time of distress” that affects the family.
A karta of a Hindu undivided family (HUF) has all the powers to manage the family and its assets, being the head of the family. The karta is usually the eldest male member. The joint family property vests in the family and its coparceners.
Karta in a Hindu family
A karta is not an absolute, independent, individual owner of the property. Each coparcener has a share, right, title and interest in the ancestral property.
A buyer should find out if the property is ancestral (inherited) or self-acquired. In an ancestral property, the karta’s identity and reason for sale has to be enquired. Get it in writing from the karta that he has the coparcenors’ consents. Legal experts also advise finding out about the family and meeting coparcenors through a third-party (friend or relative), to know if they are aware and in agreement with the sale.
“Many times, coparcenors may have received their share of the property. But that does not mean they cannot contest the property sale. He/she may not be satisfied with his share. So, ask the karta and the corparcenor if they are fine with the sale,” says a law consultant.
Chugh explains that the eldest male member in three generations — great grandfather, grandfather, father and son — are called coparcenors. They have a definitive right to the ancestral property from the time of conception. After 2005, sons and daughters are equal coparcenors.
“In the case of disputes relating to inheritance, insist on a Probate or Letters of Administration. These are court orders recognising a person as being authorised to deal with the property. The consents of persons in occupation of the property should also be taken,” says Hariani.
The wife of a karta can also contest the sale of an ancestral property if the karta is dead and the children sell the property without her consent. If senior family members (older that the seller) are alive, it is better to have a word with them personally. In India, most parents don't have a problem if their children sell assets for funds,” says the law consultant.
If it is an absolute property, a woman can contest a sale only if the property is in her name. If it is a female coparcener, a property loses its ancestral/coparcenary character once she receives it. It will be her absolute property.
In the case of a male coparcenor, a property ceases to be ancestral if he remains unmarried or does not have children. The ancestral property inherited by him may become an individual/private property.
A self-acquired property (earned by own efforts) belongs only to the sole owner and nobody can exercise any right on it, except for his divorced or separated wife and children. Hariani says sale of a property jointly held by husband and the wife requires both to consent. If the property is only in the name of the husband, the wife's signature is usually not obtained.
“But in case of a dispute, the wife can claim right of residence in the matrimonial home. Here, even if the husband-wife relationship is not known, ask for the wife's consent. In fact, ask for consent of all persons residing in the apartment,” he advises.
Chugh recalls how an 18-year-old had contested the partition of an ancestral property done by his father when the child was just born. Children have a right over ancestral property from the time of their conception and can contest the sale of such property between the ages of 18 and 21. In such cases, a buyer would have very little control.
Similarly, children from a second marriage or wedlock are legitimate though a second wife does not have any right on her husband's property. A live-in partner (if a woman) has all the right. Therefore, in the case of a single male or female property seller, it would be wise to ask the marital status, relationships and whether or not there are children.
*Some names have been changed on request as the cases are subjudice
