Ancestral property issue
rajiv dehuliya
(Querist) 02 December 2012
This query is : Resolved
i am rajiv (hindu). my father had 20 acre agricultural and land in dewas (mp).the land is ancestral. i have one sister. i was born in 1952 and sister born in 1960. my father died in 1964.mother died in 2006 jan .
my sister filed a suit for partion in jan 2006 in district court. she asked for 50% of land in her favour. the court gave descion in her favour .
later i appealled in high court but high court also gave descion in her favour.
my opinion is that i should get 75 % and she should get 25 %
plz give ur opinion, what should i do next?
is there any change in law after 2005 in hindu succession act due to which descion get against me?
Raj Kumar Makkad
(Expert) 02 December 2012
You have not mentioned the nature of the agricultural land. I think this shall be self acquired property of your father. your mother died in 2007 and your sister filed her suit in 2006. At that time your sister was entitled to only 1/3 share and not 50%, however, after death of your mother, she is equally entitled to inherit her share with you. This means she is entitled to 50% share of the property now. You are mistaken inheriting 3/4 and 1/4 by you sister. You both are owners to the extent of 50% each and law of 2005 has nothing to do with the present controversy as your father had died in 1964.
In case the property was ancestral in the hands of your father then the situation shall be different so first clear the facts.
rajiv dehuliya
(Querist) 02 December 2012
the property was ancestral and mother actually dies in 2006 jan. in the same month my sister filed the suit..
Mayank Saxena
(Expert) 02 December 2012
I do agree with the Raj Kumar Makkad ji first mentioned the nature of agricultural land.According to Hindu Succession (Amendment )Act2005 under sec 6 your sister has equal share of the property as you have .therefore your sister has 1/2 share of the land mentioned by you.
Raj Kumar Makkad
(Expert) 02 December 2012
If the property was ancestral in the hands of your father then your sister is not entitled for the grant of 1/2 share. As you father had died 1964 so Hindu succession Act as prevalent at that time has to be taken into account. At that time, the daughters had only right to maintenance in the ancestral property. After demise of your father your sister was entitled to inherit 1/9 share and rest of 8/9 was owned by you and your mother in equal share. After demise of your mother her 4/9 share shall be inherited in equal share by you and your sister. Thus you shall become 6/9 and your sister shall become 3/9 means you are legally entitled for 2/3 and you sister to the extent of rest of 1/3 share in theh entire property. File SLP in suprme court of India.
J K Agrawal
(Expert) 04 December 2012
Dear Makkad Sahib
I am not following the calculation of 1/9 part of share of a daughter, in inheritance. I am however not much aware of law which was applicable between 1955 to 1976 but I know that After amendment in 1976, the amendment is retrospective and effecting from 1955.
In this case as per section 6 of HSA a notional partition is must. If partition takes place just before the death of father, the son and father gets equal part.
If a daughter asks for her share, she is entitling to inherit only her fathers share that means 50% if 1/2 part that is 1/4.
As such the son gets 3/4 and daughter gets 1/4.
But again to say this position was only up to 09-09-2005. After that the law changed. After this date the daughter is entitle as a son and daughters are also coparcener so the judgment is correct and the both are entitle to 1/2 part.
Raj Kumar Makkad
(Expert) 04 December 2012
*Aggarwal sir! we shall have to understand that the portions get divided soon at the time of the death of the father of author. His father died in 1964. At that time the daughters had only notional share in the ancestral property. At that time the property was distributed in 3 shares viz. 1/3 for author, 1/3 for his mother and rest of 1/3 for his father as if he was living and this 1/3 share of his father was further divided in equal share among the author, his mother and his sister. In this way, the author became owner of 4/9 share, his mother also of 4/9 share and rest of 1/9 share was inherited by his sister.
Now come to the period when the mother of the author died in 2006. At that time the daughters were entitled to inherit equal share of her father/mother who so ever he /she may be died after 2005. In this way, the daughter and son inherited equal shares of their mother.
In this way the author is owner to the extent of 2/3 share and his sister is of 1/3 share.
J K Agrawal
(Expert) 05 December 2012
Learned sirs
The succession among Hindus is a very hotch potch subject and really tough to understand.
The answer by you shows that in 1964 the schedule 1 was different then in 1976 and the sisters were having no right. If it is so, It was not within my Knowledge.
I think the case of Gurupad Khandappa Magdum vs Hirabai Khandappa Magdum And Ors decided on 27 April, 1978 AIR 1978 SC 1239 is real interpretation of section 6 of Hindu Succession Act.
But amendment 2005 changes each and every thing and it is retrospective if actual partition did not take place.
Which means the sister was coparcener even in 1964.
