Ancestral property status
Kamal Sharma
(Querist) 05 September 2014
This query is : Resolved
Hello,
Thanks for reading this. I have a very urgent question. My grandfather had 3 sons and 2 daughters and he transferred his whole ancestral property to his 3 sons only via decree in 1972 without making the daughters as party in the decree so they had no role in that decree and it was done without their consent.
And since my father acquired property from my grandfather via a decree in 1972 he claims it to be his self earned and says that the status of this property is changed and it's not ancestral property any more and now he transferred the whole property to my two brothers leaving me and other 4 sister out of the scene without our consent. He also created a will in 2007 mentioning the whole property to be transferred to his sons only. He is still alive though.
Can I have the share in the property?
Thanks,
Kamal Sharma
(Querist) 05 September 2014
So, my Father's property is not ancestral and I cannot claim it?
Anirudh
(Expert) 05 September 2014
Please paste the complete contents of the Decree passed by the Court in the year 1972, after going through one can say whether it was / is ancestral or not. Without those details it is not at all possible to give any view.
Kamal Sharma
(Querist) 05 September 2014
Thanks for your reply Anirudh Sir. I do not have the decree in computer format. I have hard copy of it.
Unfortunately here is no way to attach the Scanned copy of it in this thread. But, if you have some specific question about it or specific part of it you want to know then I can write it down.
Also, if you have any personalized email or something where I can send the scanned documents for your facilitation then it will be great.
Thanks for the reply again.
malipeddi jaggarao
(Expert) 05 September 2014
What I understand is - there was a court decree transferring the property of your grand father to his sons.
Your father treats its as self-acquired property and he made a will excluding some of his children.
Prima facie it should be treated as self-acquired property of your father and he can deal with it as he likes.
What is the litigation and what is the decree should be seen to conclude whether the property bestowed in your father by a court decree is to be treated as self-acquired property or not.
Kamal Sharma
(Querist) 05 September 2014
Hello malipeddi jaggarao, Thanks for the message.
In what case the decree can be considered null or invalid?
Is there any way by which it can still be proved as ancestral property? Any clue or any condition?
Thank You,
AJ
malipeddi jaggarao
(Expert) 05 September 2014
Unless we know the full facts of the case and decree, we cannot help you.
Kamal Sharma
(Querist) 05 September 2014
Hello, Here is the Copy of the Decree as written------
My Grandfather had 3 daughters too which were not informed about anything. In fact no other family member was informed about this.
One respected advocate suggested that this case is non joinder as no wife, sister or adult kids were consulted before taking this step.
=========================================
Copy of plaintiff
In the court of Senior Sub Judge, Rohtak.
1. Ram Singh.
2. Rattan Singh
3. Bharat Singh ss/o Sh. Gokal s/o Ranmal VPO Kheri Jasaur Tehsil & Distt. Rohtak.
Plaintiffs
Versus
Gokal s/o Ranmal s/o Surjit VPO Kheri Jasaur Tehsil & Distt. Rohtak.
Defendant
Suit for declaration
The plaintiff submit as under:-
1. That the plintiff are the sons of the defendants
who is the owner of the land comorisng Khewat No 6/7 KHATONI No 8 measuring 234 Kanal 6 Marlas in
VPO Kheri Jasaur Tehsil & Distt. Rohtak.
2. That about 2 years ago the Family Settlement took place in consequence of which the land mentioned in para no 1 of the plaintiff was given to the plaintiff in equal shares i.e
1/3 each. The possession was handed over to them.
3 That since then the plaintiff's had been in possession on ownership of the land alienate without any interference from anybody including the defendant.
4 That the defendant now in collusion with the revenue official (Patwari) does not allow to get the entries correct and on the other hand he -----to interfere with the possession of the land.
5 That the plaintiff have requested the defendant so many times and now he has finally rejected to acceed to request on 05-07-1972 which is the date of cause of action in present suit.
6 That the property is situated in Village Kehri Jasur Tehsil & Distt. Rohtak therefore this court has jurisdiction to try this suit.
7 That the value for the purposes of Jurisdiction is Rs 1518-90 thirty times of the land revenue i.e Rs. 50-63 but the suit being a suit for declaration so the court fee of Rs 19.50 has been affixed as the court fee required.
8 It is therefore prayed that the decree for the declaration to the affect the the plaintiff's are the owners of the land in dispute in favour of the plaintiff's and against the defendants may be granted with costs and any other relief maybe given which the court deems fit.
Verification.
Verified that the contents of the
plaint from para 1 to 2 ara correct
to the best of our knowledge and rest
to our belief
Place ;
Rohtak
Dated ; 15/7/72 Ram Singh, Rattan Singh &
Bharat Singh ss/o Sh . Gokal
V. Kheri Jasaur Disst Rohtak
Through Bhagwan Singh
Advocate, Rohtak
=========================================
Copy of written statement of the defendant
In the court of Senior Sub Judge, Rohtak.
Ram Singh & ors. Versus Sh. Gokal s/o Ranmal
(Plaintiff) (Defendant)
Suit for Declaration
Written statement on behalf of the defendant.
Sir,
The defendant begs to submit under :-
1) Para no. 1 of the plaintiff is correct & admitted.
2) Para no. 2 of the plaintiff is correct & admitted.
3) Para no. 3 of the plaintiff is correct & admitted.
4) Para no. 4 of the plaintiff is correct & admitted.
5) Para no. 5 of the plaintiff is correct & admitted.
6) Para no. 6 of the plaintiff is legal.
7) Para no. 7 of the plaintiff is legal.
It is therefore prayed that a decree for declaration be passed in favour of the plaintiffs in to equal shares of the whole land mentioned in para no. 1 of the plaint, as prayed for.
Dated: (---------------)
=========================================
Copy of Order
Ram singh vs Gokal
Present: Counsel for the parties.
Written statement admitting the claim of the plaintiffs filed. Plaintiffs suit is decreed against the defendant without costs.
Announced. Senior Sub Judge,
Dated 06/10/72 (Rohtak)
Rajendra K Goyal
(Expert) 05 September 2014
Consult a local lawyer and show him all the papers.
Anirudh
(Expert) 05 September 2014
No where in the plaint it has been mentioneld that the land in question was 'ancestral'.
Kamal Sharma
(Querist) 05 September 2014
We have "Intkaal" and other documents that shows that the property my grandfather acquired was from his ancestors and so on.
This property is the same property since 4-5 generations.
But, my grandfather transferred all his property to his three sons only via decree without any involvement of the other kids (3 girls) and any other family members.
So, nobody in all the 4-5 generations purchased or earned any property they just transferred it as it is to male child only.
Anirudh
(Expert) 05 September 2014
Even if it was 'Ancestral', the partition had been effected in the year 1972 itself, much before the HSA 2005 Amendment. Therefore the daughters of your grand father at that time were not coparceners and therefore are not entitled for any share in the property.
Kamal Sharma
(Querist) 05 September 2014
But, can I have any share in this since it is parental property?
And if the decree of parental property is considered self earned property then there is no point of daughter's share joke as everybody will do a decree in every generation and opt out daughters easily.
This way law is in one way showing that they want daughter's to have equal rights and in the same way they are giving a very easy opt out for all the fathers who don't want their daughters to have share.
This property is unchanged for 4-5 generations and if in my father's generation my grandfather transferred it as decree to him without any money involved (free of cost). How can this property become his self earned? This way now all the future generations will decree the property to their sons eliminating the female child out of the picture as like the past. What changed then?
This is total inequality and unfair. Thanks for your expert advice though.
K.K.Ganguly
(Expert) 05 September 2014
1. The land is not ancestral i.e. no 4 generation flow with out any settlement/gift/will,
2. The suit asys about family settlement,
3. So, you father has every right to do whatever he wishes to do legally with his said property without taking anybody's consent.
Anirudh
(Expert) 06 September 2014
Dear AJ,
Don't be so skeptical.
You say: This way law is in one way showing that they want daughter's to have equal rights and in the same way they are giving a very easy opt out for all the fathers who don't want their daughters to have share.
THIS IS ABSOLUTELY WRONG UNDERSTANDING OF LAW BY YOU.
Please note, there is a cut-off date in the law, according to which if anything had already been done prior to that cut-off date, the daughter's cannot claim right.
Therefore, if the property is 'ancestral' as claimed by you, then the settlement had been effected prior to the Cut-Off date. Therefore the daughters in the fact situation are not entitled to any share.
If the property is separate, then the father had every right to do whatever that he wants and he can give the property to whomsoever that he wished to. Therefore, if he had given it to the sons and not daughters, then daughters cannot complain.
Therefore, once again, let me tell you not to be Skeptical without knowing or understanding the law.
malipeddi jaggarao
(Expert) 06 September 2014
Read again the Point No.1 in the reply of Expert Mr.Ganguly. This is the important parameter to treat the property as "ancestral" or "acquired". There are many misconceptions in the minds of common people about law. Basing on the misconceptions they form some opinion and start thinking that is right.
Kamal Sharma
(Querist) 06 September 2014
Hello malipeddi jaggarao & other experts for reply.
For the point 1 of Mr. Ganguly Which states
"1. The land is not ancestral i.e. no 4 generation flow with out any settlement/gift/will,"
This property was transferred from one generation through 4 generations without any settlement/gift/will/decree since everything took place before 1956 Act where women had no rights in the property.
This property was received by all the male child after death of their respective fathers(parents) as only male child were eligible for the property and female child were excluded by default (till 1956). So, just for clarification. A deed, Will, Decree etc was never exercised before till 1972 when the first time the role of women's right in the property share comes into play in our property after the 1956 Act.
You are saying that my father has acquired this property via decree and he can eliminate all girl child and can do whatever he wants with the property. But, then how my grandfather did it since that was not his self acquired property and he eliminated all female child to favour male child in decree? He inherited that after his father's death in 1927 and then decreed that property to my father and 2 uncles leaving 3 of my Bua totally.
Thanks in Advance to all the experts in advance.(Mr Anirudh, Mr. Ganguly, Mr. Makkad and all the ohter for taking their time in it).
Anirudh
(Expert) 06 September 2014
Dear Mr. AJ,
You appear to be not reading the reply properly.
Please read my reply (i) why the daughters are not entitled in this case, if the property is 'Ancestral'. - This is because of the cut-off date.
Forget for a while, that the property is 'separate/private property' of your father. Assuming and admitting that it was 'ancestral', now tell me how the daughters in your fact situation are entitled to a share keeping in view the CUT-OFF date?
Kamal Sharma
(Querist) 06 September 2014
Hello Mr. Anirudh,
Thanks for the quick reply and your kind patience with this matter.
I understand your point but my one dear friend who happened to be an Repute High Court Advocate is in touch with my case and seems very confident that I can win this absolutely. I will visit him very soon and ask for the details and will share that with you guys too so that we can have some brainstorming of our own too.
I am not skeptical but I trust his abilities and thought there might be some way. I don't see any point of him lying or misguiding me though as he's family friend too. But, it will be very interesting to know what he has to propose in this matter which he claims to be legally right and missed out by you guys.
Thanks for your kind help once again and keep the flag of justice flying high.
Take care.
Anirudh
(Expert) 06 September 2014
Dear Mr. AJ,
It would have been nice if only you had not used the word 'guys'. I detest it.
Kamal Sharma
(Querist) 06 September 2014
Hello Anitudh,
My sincere apologies for that if in any case it hurt your feelings I regret it.
It was nice to meet you all Gentlemen though.
Now are we good?
Thanks,
V R SHROFF
(Expert) 06 September 2014
ur adv may not like to discourage you!!!!!!! being family frd..
malipeddi jaggarao
(Expert) 06 September 2014
@Mr.A.J.: The way you are twisting the things, blaming the judiciary/legal process/government and the way you are addressing the experts show that you not eligible to seek free advice from this portal. What do you mean by "Now are we good?".
@Mr.Anirudh & Other experts: The author is bent upon to spend the money. Let him to do it. Any advocate will say that the client has the ground to win. Any Doctor will say that the patient will be okay. Otherwise who will go to them?
Kamal Sharma
(Querist) 06 September 2014
thanks I understand. Thanks to all experts.
T. Kalaiselvan, Advocate
(Expert) 08 September 2014
the author repeated the same query in the forum section and she was properly addressed, however she doe not seems to understand the reply. I am sorry if I had mistaken AJ for feminine gender, because it appeared to be so in the forum section.
Raj Kumar Makkad
(Expert) 08 September 2014
If the same query has already been raised in forum section then why the same has been posted here?
(Expert) 05 September 2014
