Deceased daughters son and daughter have any right
GANGAM.RAJENDER.
(Querist) 15 June 2014
This query is : Resolved
respected sir,
the property belongs to ancestral property.
the property belongs to the person XX.
THE PERSON XX WAS DIED IN THE YEAR 1948 and intestate was devolved her three sons (i.e Y1,Y2,Y3). THEY GET THE PROPERTY AS ORAL PARTITION AMONG THE SONS.
the elder brother (Y1) had one son(S1) and one daughter (D1) AS Y1 sold the property in the year 1969 with registered sale deed as without consent of the son and daughter at that time daughter (S1) WAS major and the son (S1)WAS minor.
in the REVENUE RECORDS Y1 name has been continuing and after his demise the son(S1)HAS been continuing in the revenue records and pass book and title deeds are in favour of Y1'S SON (S1).
THE EXECUTENT AND THE CLAIMANTS OF THE SALE DEED DATED 19/6/1969 WERE DIED AND ONLY ONE WITNESS IS ALIVE,REMAINING WERE DIED.now the witness saying that i never signed in the sale deed and disputing the sign in the sale deed .
THE successors of the sale deed filed the declaration suit against the executant's son(S1) IN THE YEAR 2006.
Q1. According to hindu succession act 1956(andhrapradesh amendment act 2005 or 1986) section 6 and section 29A the female daughter has any right in the property as SHE WAS BORN AND MAJOR AT THE TIME OF ALIENATION OF THE ANCESTRAL PROPERTY.
Q2. IS SHE ENTITLED TO COPERCENER RIGHT IN THE FAMILY AND HER CHILDREN HAVE ANY RIGHT IN THE PROPERTY,WE NOT IMPLEADED IN THE SUIT,IF ANY RIGHT WE WILL BE IMPLEADED.
THANK YOU SIR,
IF ANY CITATIONS REGARDING THIS ISSUE PLS PROVIDE SIR.
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ABDUL RAZIQUE
(Expert) 15 June 2014
Q1. According to hindu succession act 1956(andhrapradesh amendment act 2005 or 1986) section 6 and section 29A the female daughter has any right in the property as SHE WAS BORN AND MAJOR AT THE TIME OF ALIENATION OF THE ANCESTRAL PROPERTY.
ANS : Section 6 of Hindu Succession Act . Devolution of interest in coparcenary property
- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, -
(a) by birth become a coparcener in her own right the same manner as the son;
(b) have the same rights in the coparceners property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparceners property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a CM (Main) No. 995/2009 Page 10 of 14 reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparceners ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparceners property shall be deemed to have been divided as if a partition had taken place and, --
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased so or a pre-deceased daughter, as the case may be.
Explanation.-- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-- CM (Main) No. 995/2009 Page 11 of 14 (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court."
Q2. IS SHE ENTITLED TO COPERCENER RIGHT IN THE FAMILY AND HER CHILDREN HAVE ANY RIGHT IN THE PROPERTY,WE NOT IMPLEADED IN THE SUIT,IF ANY RIGHT WE WILL BE IMPLEADED.
ANS : Yes she entitled to coparcener right.
Dr J C Vashista
(Expert) 16 June 2014
The amendment in Hindu Sucession Act, 1956 has prospective and not retrospective effect. Therefore, coparcenary rights of a daughter has to take effect after September 2005. However, Section 29A of Andhra Pardesh Amendment Act, 2005 can not have overriding effect on the Central Act.
In the intstant case, "the elder brother (Y1) had one son(S1) and one daughter (D1)...." Y1 sold the property in the year 1969 through a registered Sale Deed, without consent of D1 (his daughter) although she was major at that time, as I observed from this post, it do not confer coparcenary right to the daughter and there is no illegality in the sale transaction.
R.K Nanda
(Expert) 16 June 2014
agree with experts.
Guest
(Expert) 16 June 2014
well advised
Rajendra K Goyal
(Expert) 16 June 2014
Agree with the advise of expert Dr J C Vashista ji.
Anirudh
(Expert) 16 June 2014
Dear Rajender, are you saying that the three sons Y1,Y2 and Y3 got the property from their MOTHER "XX"? Please confirm.
Anirudh
(Expert) 17 June 2014
Dear Rajender, you have to confirm whether "XX" in your query relates to a female or a male.
GANGAM.RAJENDER.
(Querist) 17 June 2014
respected sir,
expert ANIRUDH SIR ,THE PROPERTY "XX" RELATES TO MALE PROPERTY SIR.
Q1.now the deceased daughter's children have any right in the said property.
if any citations regarding this issue pls provide sir.
THANK YOU SIR
Q2.WITNESS DISPUTING THE SALE DEED WHICH IS ANY USE FOR DEFENCE IN THE SUIT. CAN WE ASK FOR EXPERT OPINION REGARDING THIS SIGN DISPUTE BEFORE THE HON'BLE COURT.
IF ANY JUDGMENTS REGARDING THIS ISSUE SIR.
THANK YOU SIR.
Anirudh
(Expert) 17 June 2014
My doubt whether "XX" is male or female arose because you have mentioned that: THE PERSON XX WAS DIED IN THE YEAR 1948 and intestate was devolved HER three sons (i.e Y1,Y2,Y3).
Now, you say that Y1 had sold the property in the year 1969 by means of a Registered Sale Deed. If so, who is in possession of the property now? What happened to the purchaser?
If the property had already been sold in the year 1969, how the son of Y1 can have his name in the revenue records?
Whether the purchaser has any legal heirs or not?
Who has filed the case before the Court?
You have to first clarify these points.
GANGAM.RAJENDER.
(Querist) 17 June 2014
expert anirudh sir,
>wether the purchaser has any legal heirs or not?
ans:yes purchasers have legal heirs
>who has filed the case before the court?
ans:legal heirs of the purchasers filed the suit for declaration.as purchasers were died.
>purchasers ARE not mutated the records as the Y1 CONTINUING THE POSSESSION AND AFTER DEMISE OF Y1 HIS SON GOT PASSBOOK.
T. Kalaiselvan, Advocate 
(Expert) 18 June 2014
Dr. Vashista is right in opinion that the HSA amendment act has no retrospective effect, thereby the daughter whether major or minor during 1969 do not have coparcenery rights in the property. Since the property was sold by Y1 under a registered sale deed, the property belongs to the purchaser and to his legal heirs subsequent to his intestate death. It might have escaped the knowledge of the purchaser to mutate the records in his name subsequent to his purchase but that does not dis-entitles him of his title over the property. The registered sale deed need not be contested to this extent. If the property is in possession of the legal heirs of deceased purchaser, they need not have filed a declaration suit too.
Anirudh
(Expert) 18 June 2014
In 1969 the daughters did not have any share in the ancestral property. Therefore the consent of the daughter is not necessary for effecting the sale of the property.
Where minor son's share is involved in the ancestral property, the Father has no right to sell the same, unless he obtains the assent (in this case the minor cannot give assent); or unless there is some established necessity or moral or religious obligation to justify the sale.
In any case, the daughter cannot stake any claim now, since the property if at all had already devolved on the sole survivor (minor son) in the year 1969 itself.
GANGAM.RAJENDER.
(Querist) 18 June 2014
respected anirudh and kalaiselvan sir,
THANK YOU FOR YOUR VALUABLE SUGGESTION SIR
Q2.WITNESS DISPUTING THE SALE DEED AS THE SIGN WAS FORGED WHICH IS ANY USEFUL FOR DEFENCE IN THE SUIT.CAN WE ASK FOR EXPERT OPINION REGARDING THIS SIGN DISPUTING BY THE WITNESS BEFORE THE HON'BLE COURT.
PLS GIVE ME VALUABLE SUGGESTION .
THANK YOU SIR.
