Ancestral rights of a hindu married daughter
honey hemwani
(Querist) 25 March 2012
This query is : Resolved
i would like legal advice on this:
i m a divorcee,hindu living in my grandmothers property,i came to this house which is also my parental place in 2007 dec.my family started harassing me for my alimony money,lot of physical n mental abuse i was made to go thru with my child they all wanted me to handover the alimony money to elder sister n brthr,i was surprised n shocked to kno that the property now stands jointly in sister n brotherinlaws name .the fact is that my brother had taken a loan from some bank with my fathers signatures as if to show that the father has taken a loan keeping the flat in mortgage,since my father cld not pay the loan he gave my sister the advantage to pay off the loan amt n sale deed has been made in 2007 april duly reg,my fathers name stood as owner in the share certificate as in the title was transferred in his name in 1997 by the society.my sister has made my life miserable n asking to sign affidavit saying that i have no rights in the property,they r forcibly trying to evict me n my dghter,my beth younger than me that is 40 yrs old n mother continue to live herein they have joined hands with my sister in harassment, pls give me legal advice whether i can ask for my rights in ancestral property yet?wat course of legal aspects can i fight my case
SAINATH DEVALLA
(Expert) 25 March 2012
To determine a person’s share in Hindu ancestral property, three sources of law have to be understood – 1) Old Hindu law 2) The Hindu Succession Act, 1956 and 3) Judicial decisions.
To determine a person’s share in Hindu ancestral property, three sources of law have to be understood – 1) Old Hindu law 2) The Hindu Succession Act, 1956 and 3) Judicial decisions.
Property inherited upto 4 generations of male lineage (i.e., father, grand father, etc.) is called as ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.
Hindu Succession Act : This act repealed certain acts passed during the British era, like Hindu Gains of Learning Act and Hindu Women’s right to Property Act. Such acts had introduced the concepts of self acquired properties and rights of widows to have a share equal to that of a son in coparcenary property after the death of a Hindu male. However the progress made by these acts have not been lost and the passing of The Hindu Succession Act again sought to enlarge the rights of Hindu daughters in owing a piece of ancestral property.
Section 6: In order to give rights to daughters, the act introduced a legal fiction of ‘notional partition’ whereby when a male Hindu dies after the commencement of the act, (leaving behind female relatives and without executing a will) his share in the coparcenary property is deemed to have been divided at the time of his death, whether actual partition has taken place or not.
a) This means that if a family consists of a father, mother, two sons and a daughter, the share of the father at the time of death, after notional partition would have been 1/4th share in ancestral property. This is because each of the sons take one share (as coparceners), the wife takes one share and the father takes one share as per the rules of old Hindu law (and as per judicial pronouncements which have interpreted and enlarged the scope of the Hindu Succession Act).
b) The share belonging to the father is then again sub - divided equally between all the heirs, i.e., mother, sons and daughter. This 1/4th share goes out of the co-parcenary property for all times. Thus the sons apart from inheriting 1/4th share as coparceners in their own right, also inherit a small share in their individual capacity from the divided share of their father. The share inherited by the mother and daughter also goes out of the coparcenary property. There are conflicting judgments on whether the shares of the sons are to be treated as coparcenary properties or not after partition, by the different high courts and supreme court.
You can lodge a civil as well as a criminal complaint against your sister,brotherinlaw,but you cannot include your parents.AS the property originally belonged to your grandmother,you have equal right as your sister.
Adv.R.P.Chugh
(Expert) 25 March 2012
Dear Querist,
Since the property belonged to your grand-mother, on her death property devolved on your father,brother,sister & you in equal parts, say 1/4th each. Hence your father/brother could not have lawfully mortgaged the entire property they could at max have mortgaged 1/2 of the property. Later when your sister pays of the loan she could not have got the entire property but to the extent of your father/brother. Hence in the end even if all transactions are accepted to be correct. She can hold the property to the tune of 3/4th. 1/4th still remains with you.
Advise :
Don't sign any affidavit or any document.
File a suit for partition & injunction in the meanwhile not to be disturbed in your possession.
Feel free to talk !
Raj Kumar Makkad
(Expert) 25 March 2012
I have nothing to add in the wise reply put by both the experts.
