My daughter-in-law Grandfather purchased a house in Bangalore during 1961 in his name. He had 2 brothers. They had 2 landed properties. They had registered a Partition Deed in 1964. They had mentioned above house as Joint Family property. In Partition Deed, house exclusive right was given to my Grandfather. 2 Landed properties was shared among two brothers. My Grandfather had self acquired properties after 1964. During 1971, Unregistered Partition Deed was made, wherein self acquired properties were distributed to his only son and 3 daughters. House was retained by him. He has mentioned in this Deed that his daughters have no rights for further claim in his properties. Grandfather died intestate in 1988. Khata was transferred in the name of my Grandmother. Settlement Deed was made in the name of one of the daughter for a floor and 1/3rd undivided share of building comprising 3 floors. All this was done without knowledge of father and he is not party to this Deed. Now, my daughter-in-law's father and Grandmother died intestate. She is sole legal heir of her father. Her father's 3 sisters are claiming their share in this property. Whether above property has Ancestral Property Status to Grandfather of my daughter-in-law? Whether her father has sole right on this property as his father expired in 1988 itself and same right passes on her? Under which Section Settlement Deed can be got nullified for registering 1/3rd share of property? What further steps to be taken after getting injunction in our favour for staying in a floor of the house, as we are obstructed by one of the sister to stay in the house?
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It is not ancestral property
2) property which has remained undivided for 4 generations is ancestral
3) on demise of grandfather property would devolve on grandmother , son and daughters
4) father 3 sisters would have equal share in property as grand father died intestate
5) settlement deed has been done without consent of other legal heirs
6) daughter could not have been given one third share of the building
7) suit can be filed to set aside settlement deed if fraud was discovered recently
Under which Section of Transfer of Property Act I have to prove that Settlement Deed is illegal?
in Krishna Mohan Kul Alias Nani Charan Kul and another v. Pratima Maity and others (2004) 9 SCC 468 wherein it was held as follows:-
The onus to prove the validity of the deed of settlement was on Defendant 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position.
Whether above property has Ancestral Property Status to Grandfather of my daughter-in-law? Whether her father has sole right on this property as his father expired in 1988 itself and same right passes on her? Under which Section Settlement Deed can be got nullified for registering 1/3rd share of property? What further steps to be taken after getting injunction in our favour for staying in a floor of the house, as we are obstructed by one of the sister to stay in the house?
This is not ancestral property for your daughter in law but she has a right to a share in her father's share in the property that was left behind by his father who is reported to have died intestate.
Actually the 1/3 share settlement made in favor of one of his sisters without the consent and permission of other shareholders is illegal and invalid in law.
Your daughter in law being the only legal heir to her deceased father along with her mother (if living), can file a partition suit claiming her father's share in the properties that were left behind by his father.
As per law the earlier unregistered partition deed done by his father is also invalid in law but if it is considered as family arrangement then there is no question of challenging it now.
However you may advise your daughter in law to file a partition suit and seek separate possession of her rightful share in the property.
Under which Section of Transfer of Property Act I have to prove that Settlement Deed is illegal?
Since the settlement deed made in favor of her aunt by her grandmother is not valid and not binding on her, she should not seek cancellation of the same at this stage.
She should ignore the fact of this settlement deed and file just a partition suit and seek partition and separate possession of her legitimate share in the property, let the court decide based on the opposite party's defence your side arguments.
The law is clear that she is entitled to a share as a right, hence she should confine to that relief alone, she should not be bothered about the settlement or any other transaction that has taken place in respect of this property, she may set aside all those events as they are not binding on her.