S. C. Vasudeva
Q.I bought a flat in March 2014 in Nallasopara (640 sqft - Sai Crystal Developers). But till date I haven't received the OC (Occupation Certificate). Since we haven't received any OC, the property is being maintained by the builder- which is not up-to the mark. The maintenance money which I'm paying was at Rs 2/sq ft and now it has been increased to Rs 2.50/sq ft with no addition or quality service. My queries are:
— Vishal Karekar
A.Your queries are replied here under:
Process for land transfer
Q.I am the only daughter of my parents. We live in Jammu and Kashmir. My father died last year. He had some agricultural land in his name. How can I get this land transferred to my name. My mother is very old and can't move out of bed.
— Deep Kumari
A. It is presumed that you are a state subject of Jammu & Kashmir and have a right to hold the property in the said state in name of your mother and yourself. The reply to your query is based on the said presumption.
It would be advisable, in view of the conditions prevailing in the state of Jammu & Kashmir to obtain a succession certificate in favour of yourself and your mother being the legal heirs of the deceased as per the Hindu Succession Act 1956 so that the agricultural land can be transferred in your and your mother's name officially. After obtaining the succession certificate you will have to approach the patwari of the village where the agricultural land is situated and get your and your mother's name entered in the revenue records. This procedure should enable you to become the legal owner of the agricultural land which was earlier owned by your father who has died.
Can my father claim right in his uncle’s property?
Q.My grandfather had a brother who was unmarried and died 10 year ago. He owned ancestral property (agricultural land ) same as my grandfather. As he did not have any legal heirs, my father's uncle made a Will transferring ancestral property to my uncles and did not include my father in his Will. I want clarification on the following points:
— Ravi
A.You have sought my advice with regard to your father's share in his uncle's ancestral property. The facts given in the query, however, do no indicate the process by which Mr. B (brother of your grandfather) inherited the ancestral property. It seems from the facts given in the query that both your grandfather and his brother were holding ancestral property separately. The presumption therefore, is that such property must have been received by both the brothers on partition of joint family property. The reply to your query is, therefore, based on the presumption that your grandfather's brother received his share of property on partition of joint family property.
A joint and undivided Hindu family is the normal condition of Hindu society. The fundamental concept of the Hindu joint family is a common male ancestor with his lineal descendents in the male line. In order to constitute a joint family, there must be more than one member; one member by himself cannot constitute a joint family. A member taking share on partition of joint family properties has the potentialities of becoming a joint Hindu family but until he marries he cannot be considered as a Hindu undivided family. (C. Krishna Prasad vs. CIT) (1974) 97 itr 493 (S.C.).
Your grandfather's brother was holding the ancestral property in his individual capacity as he was not a married, and therefore, there is no joint family as far as he is concerned. The ancestral property inherited by him has to be considered as his individual property, thus giving him a right to dispose of the same in the manner in which he desired. He has made a Will of the said property in favour of your uncle/uncles and according to the judicial opinion on the subject he had this right by virtue of the fact that the property received by him did not retain the status of a joint Hindu family property. Accordingly, in my opinion your father will not be able to claim a share in this property for which Mr. B made a Will in favour of your uncle/uncles. However, you should consult a lawyer on this aspect.
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