Can a partition deed signed by a father on behalf of his minors hold good?
Querist :
Anonymous
(Querist) 06 May 2011
This query is : Resolved
In 1952, a Hindu Grand father signed and registered a partition deed between his brothers but it also stated in one of the clause that his wife and minor daughters will not have any rights on the ancestral property that the joint faimily has recieved as a result of the deed.
The deed stated that the rights will only be of the male members(himself and his son), but subject to the right of the women under the Hindu Law.
Would this deed mean that the property rights of the daughters are alienated and they would not be able to claim the coparcenary rights on this property after the 2005 amendment?
To be noted is that it was a ancestral property.
The deed was done before 1956.
The daughters and the son were all minors. The deed was duly registered.
Daughers claimed thier rights only in 2009 as they were not aware of the deed.
Is awarneess required?
How does one interprete "subject to the rights of the women under the Hindu law"? and what is the ramification?
R.Ramachandran
(Expert) 06 May 2011
Please indicate, what is your family structure - i.e. your father, mother, how many son(s) and daughter(s).
Whether your father / mother are alive now. If not then indicate the date when did they pass away.
Also indicate where is the property situated?
If the daughter(s) are married, please indicate as to when did they marry.
Upon knowing the above details, I will give you the answer to your query.
R.Ramachandran
(Expert) 06 May 2011
Please also indicate whether any partition of the property was done by your father? If so who all got the share? When was the partition done?
Querist :
Anonymous
(Querist) 07 May 2011
Grandfather had one son(my father) and 2 daughters. The daughters got married prior to 1970. My grandmother passed away in 1976.
Grandfather passed in 1992. My father being the only son took over the responsibility of the property and also amended the land records in 2000 to transfer the propert in his sole name.
He passed away in 2000. He did not do any partition deed as he was the only son.
After his death, we got the property mutated again in the name of my mother and myself. I am the only child of my father.
My mother is still alive.
The property is in Mumbai.
R.Ramachandran
(Expert) 07 May 2011
Dear Mr. Anonymous,
The legal position of the matter is as under:
1. When in 1952 your grand father entered into a partition deed with his brothers, he got 1/3rd or so share to his portion. One of the clause which mentioned that the joint faimily has recieved as a result of the deed, and his wife and minor daughters will not have any rights on the ancestral property.
THIS CLAUSE IS ONLY TO THE EXTENT OF ASSURING THE OTHER COPARCENARS (I.E. HIS BROTHERS) THAT THERE WILL BE NO SEPARATE CLAIM EITHER FROM HIS WIFE OR HIS MINOR DAUGHTERS. NOTHING MORE NOTHING LESS. THIS CLAUSE IN NO WAY WOULD AFFECT THE FURUTE RIGHTS OF THE DAUGHTERS.
Having said this, let me also indicate the following:
a) The property is ancestral - there is no doubt about it.
b) Your grand father never partitioned it during his life time. Your grand father died in the year 1992.
c) In 1992, the unamended Hindu Succession Act, 1956 was in force. According to Section 6 of the said Act, if a Male Hindu, having an interest in the co-parcenary property dies and leaves behind female relatives (wife / daughter), then his interest in the coparcenary property shall devolve either by testamentary (i.e. will, Gift deed if any left by him) or intestate succession.
d) In the instant case, your grand father did not leave any Will or Gift Deed. Therefore, the property in question will first get divided into two shares i.e. 1/2 each (this division/partition is automatic immediately on the death, since the Section 6 of the Act says so) between your grand father and his son (i.e. your father).
e) Since your grand father dies without leaving any WILL/Gift Deed, the 1/2 portion which has gone to his share will be inherited equally by his legal heirs (i.e. his son - your father; and his two daughters - your father's sisters). This will be 1/2 x 1/3 = 1/6th share each.
f) Thus your father would have got 1/2 + 1/6th share i.e. 2/3rd of the whole property. Your father's two sisters would have got 1/6th share each - thus their combined total would be 1/3rd.
g) When did they raise the question of partion is immaterial. If they are legally entitled, they can claim their share at any point of time and they are entitled to receive it.
Guest
(Expert) 07 May 2011
Agree with the detailed advice given by Mr. Ramachandran.
Querist :
Anonymous
(Querist) 08 May 2011
Dear Mr. Ramchandran,
Thanks for your reply.
I would like to clarify one aspect of Coparcenary properties. It seems that the coparcenary properties have a typical aspect -
A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father.
I was born in 1970 adding to the male lineage. Would I not be entitled to 1/3rd share of the property as soon as I am born, effectively reducing the share of my Grand father and Father from 1/2 + 1/2 to 1/3 between the three of us?
Hence at the time of the death of my Grand father is his share not 1/3rd?
Thanks for clarifying on this aspect also.
Querist :
Anonymous
(Querist) 10 May 2011
Dear Sirs,
I would appreciate your confirmation on the above that the share effictively would be 1/9 th for the married daughters.
Thanks.
R.Ramachandran
(Expert) 10 May 2011
Dear Anonymous,
You are right when you say: "A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family.
An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father."
That is why I said that your father will have equal share with his father (i.e. your grand father)i.e. 1/2 share each.
Thereafter since you form part of your father's family, you being a coparcenar along with your father, your share is equal to that of your father. BUT YOU CANNOT GET EQUAL SHARE TO THAT OF YOUR GRAND FATHER!
I have already given my views about how the property would be divided and who would get what share. According to me, I had said that the daughters of your grand father (i.e. your aunts) would get 1/6th each.
But You want me to confirm that the daughters would get 1/9th share. I do not know how you arrive at 1/9th share in the property for the daughters.
Querist :
Anonymous
(Querist) 12 May 2011
I was doing some research and came across the following -
1. A woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. In a patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son. Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a greatgrandson constitute a class of coparcenars, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth.
