Need help in understanding property share to my aunt
ash83
(Querist) 29 December 2014
This query is : Resolved
Hi Experts in here, need you help in understanding property share to my aunt.
We have a property which is ancestral, my grandfathers father property.
my grandfather had 4 sons and 2 daughters.
my father is 2nd son.
one of my aunt has put a case. The inputs are
1. Propery is ancestral
2. My aunt is born before 1956
3. My aunt married before 1990
4. Case is in Karnataka court filled in 2011.
5. The property was made partitioned among sons by grandfather when he was alive in favour of sons in 2001 because their was no opposition by both my aunts during that time.
6. My both aunts has not put a signature in the participation documents.
7. one site each was given to my aunts but was not registered by my grandfather to them. One aunt sold the site to my dad brother on mutual understanding and another aunt who put case sold the site to someone else through my grandfather making signatures to seller directly and also her brothers. the site which inturn again purchased by same my dads brother . This happened before the case was filed.
All was well, until, there was some family disputes recently which triggered my aunt to put case on us.
All experts. need you opinions in out come of the case.
Regards, Raj
ajay sethi
(Expert) 29 December 2014
when did your great grand father die? did he leave any will ? how did property devolve on your grand father?
ash83
(Querist) 29 December 2014
Hi Ajay, thanks for the response.
This mentioned below is the correct explanation how the property came to us as said by my father to me, which is mentioned in below points. please consider references from my father point as mentioned below. before i gave references as my grand father.
1. The Property was purchased by my father great grand father.
2. My father great grand father had 5 sons. One of the share is my father grand fathers made through partitions.
3. my father grand father had two sons.
4. my father grand father died somewhere around 1940s. ( for me he is my great grand father)
5. my father grand father died instate without writing any will or any partitions took place between my father father and my father uncle (uncle is my father father elder brother)
6. My father father and my father elder brother made partitions among themselves through court settlement.
7. My father father has 4 sons and 2 daughters.
Now my father father in 2001 made partitions among his 4 sons.
and above points can be referenced on my aunts as said above.
Thanks for your time to reply.
The property was in dispute by father father and his uncle. That was settled, now when we felt everything is alright, because of family personal differences one of my aunt is causing problems now. Other Aunt is in favor of us.
Regards, Raj
T. Kalaiselvan, Advocate
(Expert) 29 December 2014
As your aunty was married in the year 1990, she cannot claim a share in the ancestral property as a coparcener talking advantage of the amendment to HSA in the year 2005because the said law has no retrospective effects. Challenge her case properly.
ash83
(Querist) 30 December 2014
Thanks for reply. I am still confused. i have opened the ticket for further clarifications. please clarify. on which point is favorable to us to fight the case.
1. You have mentioned my aunty married in year before 1990 ( acutual marraige date is somewhere in (1970 to 1975) she cannot claim. Do you mean this act below applies ?
KARNATAKA ACT No. 23 OF 1994.
(First published in the Karnataka Gazette Extraordinary on the Thirtieth day of July, 1994)
THE HINDU SUCCESSION (KARNATAKA AMENDMENT) ACT, 1990.
(Received the assent of the President on the Twenty-eighth day of July, 1994)
SEction 6(A) clause (d) says,
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.
This is made in assent of the president as mentioned on 29th July 1994. so article 254 clause 2 applied.
The question, to remove discrimination of married women and un married women, as per HSA 2005, daughter by birth will get same share.
Question1:
Will HSA 2005, as per article 254 clause(1) again upholds state amendments of karnataka made on 29th July 1994 and Parliament decision on 2005 to be considered ?. This gives daugther share by birth irrespective or married or un married.
Questions2:
In HSA 2005, also says,
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.
Since my grand father has already made partitions among sons in 2001, does this only point which is in favor of us to win the case?
please clarify ?
Question 3:
further, my both aunts have signed a panchyat partitions agreement, agreeing no problem by their side for brothers making partitions on 1992, since it is not executed it is not valid ?. But that was actually registered in sub registrar on 2001 in that my aunts signatures is not their. Does not putting signatures is a problem ?
Thanks everyone for helping our people with problems with your prompt suggestions and solutions.
Regards, Raj
T. Kalaiselvan, Advocate
(Expert) 30 December 2014
You may note that I am of the opinion that in the situation that what you told is taken as facts, your aunt will not be entitled to a share in the ancestral property as a coparcener because the central amendment came into effect on in the year 2005 and your state amendment in the year 1994, under both the amendments they were not having retrospective effect,since your aunt was reported to have been married off in the year 1970 or 1975, she loses chances of a claim as per law. For further help and guidance, consult your lawyer.
ash83
(Querist) 30 December 2014
Thanks Kalaiselvan sir, All the facts stated above are true to my knowledge.
We are happy to give her share, but she is not listening, threatening us for equal share because of some family disputes.
sorry i am not able to understand, what exactly means "they were not having retrospective effect" in our case. can you please clarify this retrospective effect in our case.
2. my lawyer is somewhat not giving proper inputs to us. he says, it is in your favour sometimes and next time he says, you better settle with them. That was the reason for me to post in this forum for opinions and what valid points can i convey lawyer to say that its in our opinion.
my lawyer and opponent lawyers are known to each other. every time both lawyers say, settle to us.
I still don't understand why court issued court order. All panis are showing, court stay. my lawyer is still not able to challenge court stay.
please clarify this last bits of questions.
Biswanath Roy
(Expert) 30 December 2014
You need help of an expert having profound knowledge in statutory laws and HSA.
ash83
(Querist) 31 December 2014
my last questions please.
1. Will not putting signatures by both aunts during the partitions made by my grandfather in 2001 will affect the case.
2. Kalaisevan sir or other who see the post, please, can you please explain what do you mean by "they do not have retrospective effects" in our case.
Regards, Raj
Jayashree Hariharan
(Expert) 31 December 2014
retrospective effect means the period prior to the enactment of the amendments. if 1994, that means it does not apply to the period before 1994.
