There has been some recent cases where apartments inside housing societies has been subject of legal battles with regard to inheritance. This blog deals with clarifying the role of a nominee vs legal heir and what are the powers which a nominee holds with regard to inheritance.
First it is important to understand a few laws which are guiding principles with regard to cases of inheritance.
Various Succession Laws in India
1) Hindu Succession Act 1956
Laws of succession applicable to Hindus, Sikhs, Jains and Buddhist are laid down in this Act. An amendment of the Act was passed in 2005, according to which daughters were also provided equal rights on ancestral property. The Hindu Adoption and Maintenance Act, 1956 lays down laws related to adoption of children and the maintenance allowance to be given to the wife.
2) Indian Succession Act, 1925
Laws of succession applicable to Parsis and Christians are laid down in this Act.
3) Muslim Personal Law (Shariat) Application Act, 1937
This Act provides the governing law for succession in case of Muslims.
Who is a Legal Heir?
A legal heir of a deceased person’s property is the person whose name has been so mentioned in the will. In case a will is not present, or the will does not clearly chalk out who the heir is, then legal heir is decided based on succession laws. Legal heirs have rightful ownership of property after the deceased.
What happens if a will is not present?
According to Hindu Succession Act, property of a deceased is equally distributed among the legal heirs unless specified otherwise in the will.
Under Muslim Personal Law 50% of the property goes to the Widow irrespective of the number of other legal heirs and rest is shared in equal parts between children.
According to Hindu Succession Act 1956 legal heirs can be of 3 types:
- Class I relations: Direct descendents are considered to be Class I relations. Example: Son/Daughter, Widow, Mother, Son/Daughter of a pre-deceased son (per-deceased means “already Dead”), Son/Daughter of a pre-deceased Daughter, Widow of a pre-deceased son, etc.
- Class II relations: In case class I relations are not present, then Class II relations become legal heirs. They are: Father, Brother/Sister, Son’s daughter’s son/daughter,Daughter’s son’s son/daughter, etc.
- Agnates and Cognates: In case Class I and Class II relations are not present, they become the legal heirs. They are any person who are even distantly related to the deceased through blood or through adoption.
Who is a Nominee?
In housing societies, according to society bylaws a nominee has to be assigned to each property. The purpose of the nomination is to make certain the person with whom the society has to deal with in case the owner of the property passes away. Therefore a nominee is a mere trustee and do not have any legal ownership on the property. The nominee holds the property till the legal heirship of a property is decided upon.
There has been several cases in regards to this. However the judiciary has always maintained the stance of providing the ownership of a property to the legal heirs and not solely to the nominee.
Cases in this Regard:
- Case of Nav Rajasthan Co-Operative Housing Society in Pune, where the wife of the deceased was named as nominee. However, when she tried to sell the property, her sons sued her claiming that she does not have sole right on the property. The High Court gave a judgement upholding the claims of the sons ruling that the sons were also legal heirs and they have equal right over the property.
- In case filed by Shashikiran Parekh regarding property in Madhurima Co-operative Housing Society, Mumbai, the court had given the same verdict stating that nominees do have sole rights to a property. All legal heirs has equal rights.
What does the Co-operative Societies Act Say?
Under Section 30 of Maharashtra Co-operative Societies Act, in case of death of a member the shares of the deceased is transferred to the nominee. However, it does not result in the flat being transferred to the nominee. He again acts as a trustee for the estate of the deceased and the society is not concerned with any disputes between the heirs over the property.
- A society member can make a nomination, which can be revoked at any time
- In case no nominee is mentioned, the society puts out a public notice inviting claims
- The nominee is in charge of the property only till the court decides who is entitled to the property as per the succession laws
Type of Property & Rules around them
- Self acquired property: As per Indian Law a person can give his self acquired property to anyone through Will. If will is not made then legal heirship determines how the deceased person’s property would be divided.
- Inherited property: In case of inherited property, the rights of the successors of the deceased person overrides all other modes including Will. All members of the immediate family (Class I) acquire the right to get equal share of the property.
- Jointly-owned property: In case of joint ownership of property which is self acquired, the surviving owner becomes the sole owner after death of the co-owner/s.
Succession Law in case of Female Death:
According to Hindu Succession laws, in case the deceased is a female, the property is distributed as per following priority. Firstly upon sons and daughters, secondly upon heirs of the husband, thirdly among mother and father, forth among heirs of father and lastly upon heirs of the mother.
If the women had any property from her Father or Mother, in that case the first right will be of the heirs of her father and not husband. In case she had acquired any property from her Husband, the first right will be of the heirs of her husband.
Overall, though the succession laws are pretty elaborate, property disputes among heirs are very common and often can become very ugly. Just setting a nomination for your property in your society is not enough. To avoid disputes its best to lay down the distribution of property very clearly in one’s will.