Ancestral property share status
Priya Mengaji
(Querist) 17 September 2011
This query is : Resolved
Hi,
My mother is claiming for her share in the ancestral property situated in Mumbai -Hindu religion which was received by her dad by way of consent decree in the Year 1950.In the Year 1984 , her dad(ie my grandfather ) & his youngest son made an HUF of the ancestral share and made a deed of partition in which she was not made a party.By the virtue of this fraudulent HUF ,they both have excluded all the married daughters(total children 6 (5 daughter & 1 son)) out of the ancestral share.
Now in 2011,the property card of this ancestral property stands in the son's name but the land 7/12 stands in fathers name.
I want to know the legal provision under which the married daughter all more than 65 years of age to claim their righful share ,their father having died in 1994 & mother died in 1992.
R.Ramachandran
(Expert) 18 September 2011
You have a very bad habit of posting your same query in different versions in new threads. Please avoid it. Otherwise, whoever wants to give their view will not get the benefit of continuity of your postings and facts and thereby would not be in a position to give you their whole sum view.
At least in future, try to stick to the same original thread and go on ask whatever queries, clarifications that you want to ask on the same subject. Ofcourse, if the subject matter is completely different and not related to the facts already posted, then you can definitely open a fresh thread.
Having said that, let me come to your matter:
With reference to your post at
http://www.lawyersclubindia.com/experts/Clarification-on-Ancestral-Property-HUF--151186.asp
based on the general query, on 23.1.2011 I had answered as under:
R.Ramachandran
Posted On
23 January 2011
The daughters (whether married or unmarried) of 'X' also have equal share in the property got by 'X' through partition of HUF.
As such, if at all 'X' forms any HUF afresh, he can do so, only after giving away the shares to his daughters (including the married daughters). In any case, 'X' cannot in any way avoid giving the shares of his married daughters in the share obtained by him from the HUF property on partition.
Now dealing with your present facts, my views are as under:
1. The property in the hands of your grand father was “Ancestral property”.
2. In the year 1984 your grand father with the ancestral property formed an HUF wherein your grand father, his wife, his youngest son and one unmarried daughter were made members. (This according to you is a fraud)
3. He did not include his married daughters (which includes your mother) as the member of the HUF.
4. In 1984, in Maharashtra, the daughters were not coparcenars. Further, at that point of time the married daughters are not members of his Joint Hindu Family. Therefore, if your grand father had formed an HUF leaving the married daughters outside the purview of HUF he was well within his legal rights and be rest assured that THERE WAS NO FRAUD involved in his action.
5. It was only in the year 1994 (i.e. with effect from 22.6.1994) the daughters were also made coparcenars in the State of Maharashtra vide Maharashtra Act 39 of 1994.
6. The said Act very specifically provided that the provisions contained in the Amendment Act will not apply to (i) a daughter married before 22.6.1994 and (ii) a property which stood partitioned before the said date.
7. Now you say that the property is still in the name of your grand father. All said and done according to you he formed an HUF and therefore the property would be that of the HUF, notwithstanding the fact that it is in the name of your grandfather. Only mutation seems to have not got done. That will not take away the HUF nature of the property.
8. Your mother and her other sisters cannot stake a claim as a “coparcener” in the said property.
9. However, since your grand father died without leaving any WILL, his share in the HUF property will go by way of inheritance amongst all his legal heirs (i.e. all his daughter(s) and son).
10. To that extent your uncle is wrong when he says that the entire property belongs to him.
Chanchal Nag Chowdhury
(Expert) 18 September 2011
It all depends on the terms of compromise by which your grandfather got the property.
As it stands, I see no illegality & your maternal uncle is the absolute owner of the house but U may fight over the land.
