Hindu succession amendment act 2005
SATISH KUMAR
(Querist) 23 June 2012
This query is : Resolved
Respected Sir,
My eldest sis had filed an appeal in the delhi high court. this court remanded back the appeal to the ADJ for reconsideration of two issues. Before the ADJ we had won the suit as defendants brothers.
My query is:
1. what defence/argument we can take now as respondents/defendants before the ADJ so that the earlier declared judgment by the ADJ stands?
2. Plz tell me latest SC case laws in our favour on the amendment?
3. Is this amendment applicable to self acuired property of our deceased father who died intestate?
Kindly help as early as possible.We brothers are not interested in the partition.we want to retain this property for ever.We are resident of delhi and two properties are at delhi and haryana.
regards,
yours,
Satish Kumar
skdhanwal@yahoo.com
9810544388
Adv.R.P.Chugh
(Expert) 23 June 2012
Dear Mr.Kumar,
Your matter has been remanded back to the ADJ, it means the High Court found some perversity or lapse in ADJ's judgement. We cannot tell you how to sustain ADJ's judgment, What judgments to cite unless we know the facts and circumstances of the case.
SATISH KUMAR
(Querist) 23 June 2012
The learned HC Judge mentioned in the order sheet that there is no question of prospectivity or retrospectivity of the hsa amendment act 2005 as only a bar to the suit has been removed; section 23 of the hsa 1956 stands deleted.
The suit was filed in 1999 in the DHC ;the suit was later transferred to ADJ bcz of demarcation of pecuniary jurisdiction; our father expired in 1996.we are three brothers and three sisters. only the eldest sis has filed this suit for partition. me and my younger brother are defending this suit. The ADJ said "no partition", amount lying in the bank be divided into six parts and released;section 23 is applicable to the case.
The issues on which the Delhi HC remanded back the case to the ADJ are as follows:
1.Whether the suit of the plaintiff is not maintainable under section 23 of the HSA in view of preliminary objection to the WS ?
2.To what amount if any, the plaintiff is entitled from the income of the joint property received by the defendant 1 to 3 ?
3. To what amount if any, lying in the bank in the account of deceased Kishan lal, the Plaintiff is entitled to ?
4. Relief.
Hope the above clarifications wud help you in answering my query plz.kindly suggest me the applicable latestSC case laws in our favour.
yours,
satish kumar
defendant/respondent
9810544388
SAINATH DEVALLA
(Expert) 23 June 2012
Dear SAtish,
You brothers have not opted for partition and hence your sister's suit is not maintainable.
Section 23 clearly specifies the following:
Special provision respecting dwelling- houses. Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling- house wholly occupied by members of his or her family, then, notwithstanding anything con-
tained in this Act, the right of any such female heir to claim partition of the dwelling- house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling- house only if she is unmarried or has been deserted by or has separated from her husband or is a widow
Guest
(Expert) 23 June 2012
Your sister is not a coparcener as the Hindu Succession(Amendment) Act, 2005 is prospective and not retrospective in nature. Therefore, a suit for partition by her is not maintainable. She has to be governed by the unamended S.6 of the Act wherein she took an equal share in the share of her father as and when the other coparceners enforced partition. The amendment is applicable only to the ancestral property.
SATISH KUMAR
(Querist) 23 June 2012
Respected Sir,
Great Sir for the above legal advice. Now I am equipped with legal knowledge 50% only.
Kindly suggest me few latest SC case Laws applicable to the facts of my case and especially on the above points about : hsa 2005 is prospective in application; suit is not maintainable in view of old section 6 of HSA; the amendment is applicable only to ancestral property. I have just enrolled as an Advocate with the Bar Council of Delhi and want to plead the case on my own.Kindly help me a little bit more and oblige.
regards,
yours,
satish kumar
Sankaranarayanan
(Expert) 23 June 2012
mr sainath devalla is given good explanation, The daughter of deceased person have full right to live until she is either widow or unmarried or unsound. Even she has right on that property she cant claim the partition on dwelling house.
V R SHROFF
(Expert) 23 June 2012
unless brothers decide partition, sis cannot demand for dwelling house only.
SATISH KUMAR
(Querist) 23 June 2012
Respected sirs,
Thanks a lot for the legal guide. Kindly suggest few SC case laws on these points.Or what are the points i shud argue before the ADJ ? shud i plead once all the case laws and the section 23 of the HSA with the reasons given by the ADJ who had decided the case in brother's favour ?Or else guide me how to do legal research and get those.
Once again, Thanks a lot for the guidance and enlightment.
regards
yours,
Satish Kumar
Anirudh
(Expert) 23 June 2012
Dear Satish,
You have not so far indicated the nature of the property. That is, whether the property was the self-acquired property of your father or that your father got the property from his father etc.?
Only if you provide this information, then one will be in a position give a suitable answer to your query.
Guest
(Expert) 23 June 2012
The Amendment itself is self illuminating when it says ''On and from the commencement of Hindu Succession (Amendment) Act, 2005" The emphasis being on ''On and from', it is manifest that the legislature intended it to be prospective in nature. The amendment is applicable from 29th September 2005 i.e. the date on which it came into force, and not earlier.
sanjeev murthy desai
(Expert) 23 June 2012
Recently apex court and High courts held that the amendment act of 2005 is also retrospective even in pending cases. Hence your case has to be decide as per amended act.
As you told that subject property are self acquired property of your father who demised before the amendment act. Hence all the legal heirs have equal rights.
Guest
(Expert) 23 June 2012
@ Sanjeev
The application of the 2005 amendment to the pending cases does not make the amendment retrospective in nature. If the factual matrix of the pending case is such that the amendment can be imported and applied, mere pendency of the lis would not be a hindrance to such application.
SATISH KUMAR
(Querist) 24 June 2012
Respected Experts,
Thanks for the expert advice.
kindly provide me the citations of the High courts and Supreme Court judgments on the point.
Also plz. guide me as to how to do legal search for the applicable judgments.
My father died intestate leaving behind his self acquired property at delhi and haryana and two savings accounts in two banks without nomination ,in 1996. So far as in understand that the HAS amendment act 2005 would not be appllicable to self acuired property of my deceased father. Suit for Partition was filed by one sis in 1999.During the course of litigation this amendment came into force. Then section 23 of the ACT wud be applicable on the facts of our case. AM I RIGHT ? Kindly confirm this also.I wud be extremely grateful to all the experts.
regards,
yours,
satish kumar
Anirudh
(Expert) 24 June 2012
Dear Experts:
The querist first posted his facts at http://www.lawyersclubindia.com/experts/PARTITION-OF-PROPERTY-31611.asp
wherein he has indicated that the property in question was self-acquired by his father.
If that be so, in what way the Hindu Succession (Amendment) Act, 2005 will have any application?
Why are all the experts assume things (without first getting the things clarified from the querist) and then go on give answer with reference to 2005 Amendment Act?
Guest
(Expert) 24 June 2012
Your sister being a class 1 heir is entitled to file a partition suit to claim her share in the self acquired property of her late father. Section 23 has been repealed now. When the law is clear you don't need any citations. As you are a beginner,I would rather suggest you to engage a lawyer and let him deal with your case.
