Married daughter property law
SUBHASH CHANDRA JAISWAL
(Querist) 23 January 2016
This query is : Resolved
My father died in 1963. My mother died in 1958. Both failed to make will. I have 3 sisters . one of them suit file in 2002 asking partition in his father's property . can she ask property partition ? All sisters are well settled and married . what should i do .
Anirudh
(Expert) 24 January 2016
First you have to indicate how your grandfather got the property.
Whether he self-acquired it?
If not from whom did he get it? In which year he got it?
J K Agrawal
(Expert) 24 January 2016
Dear Mr Anirudh.
I cant follow your questions. It is also very confusing to me that you are a legal practitioner or a common person as you have no profile update.
As per my little knowledge, I think all your questions are totally irrelevant to answer the query.
After death of a person, all his property is ancestral as far as it relates to question of partition.
These questions may have a role in calculation of share in case there is some coparcenary property also in hands of deceased.
Here the question is if the daughters can seek partition ?
The answer is just simple that daughter are always entitle (since 1955) to seek their share partitioned 'after death of father'.
Now doubt may arise that what is the effect of amendment effective from 09-09-2005?
This amendment does not restrict any right of daughters they were having earlier.
This amendment gives an additional right that after 09-09-2005 the daughters will be deemed to be 'coparcener' just as sons.
Now it is necessary to understand that what is the effect of the amendment and what further the hon'ble Supreme Court clarified it?
Firstly if father is alive on 09-09-2005 and he is having share in 'coparcenary property' the daughters are also entitle to file a suit for partition, same as sons. This was not possible prior, in life time of father.
The other major effect is regarding the calculation of share of the daughters.
Take an example
A father dies before 09-09-2005 having 'coparcenary property only' and leaves behind 1 son and 1 daughter. (we are talking about coparcenary property only and not about self acquired).
As per old law, his son will get 3/4 part and daughter will get 1/4 only. (Not equal as generally understood by the common public or even some lawyers.)
The reason is - first the property will be divided among father and son 'just before the death', and the father will get 1/2 and son will get 1/2.
Now this 1/2 part of father will be divided equally among the daughters and sons that is half (1/4 part of total property) to the son and the same to daughter.
As such the son gets (1/2 + 1/4) 3/4 part and daughter only 1/4 part.
This system is vanished by amendment dated 09-09-2005. It was commonly understood that the change is applicable since 1955 but the Hon'ble Supreme Court clarified that it is prospective only and will be applicable if father dies after 09-09-2005.
It means if a Hindu dies after 09-09-2005, the property (coparcenary property) will be divided as per said example, 1/3 part to father, 1/3 to son and 1/3 to daughter. After that the 1/3 part of father will again be divided among son and daughter in equal part. As such the both son and daughter will get 1/2 part each.
Enjoy the law.
Rajendra K Goyal
(Expert) 24 January 2016
Daughters have share and can ask for partition in the property of their father.
P. Venu
(Expert) 24 January 2016
The property is vested with you and the sisters. Their financial situation is of no relevance.
SUBHASH CHANDRA JAISWAL
(Querist) 24 January 2016
Respected sir , my grand father died in 1963 . my grand mother also died in 1958. My father have 3 sisters .all property transferred to my father immediately after the died of my grand father . one of them sister suit filein in 2002 asking property partition saying that it is my father's self acquired property. All sisters all married and well settled.my question is -
1- can sister ask proprty partion wether it is ancestoral proparty or self acquired after my grand father (death in 1963) according hindu mitakshara act 1956
2- if property is self acquired of my grand father then how much share will be alloted to them
3- if property is ancestral then how much share will be allted
Note- all three property is residencial building and one of them is self acquired by my grand mother.
Plz Give me legal situation and proper advoice
Anirudh
(Expert) 24 January 2016
Dear Mr. Agrawal,
I feel it my proud privilege to answer (in bracket) each and every point raised by you in your above post.
You say: I can’t follow your questions. - (I am sorry, I cannot do anything more. It appears to me that my questions are quite simple, short and straight forward. I do not know how to make them further simpler. If you really meant that you are not able to understand why I am putting these questions that is altogether different matter.)
You say: It is also very confusing to me that you are a legal practitioner or a common person as you have no profile update. (This again is quite surprising, coming as it does from you, whom I regard as one of the very few sensible Advocates on the site. I am sure, I have indicated in my profile “Advocate”. Unlike others, I don’t have anything else to enhance my profile. Nor have I done anything which would have robbed me of my "advocate" status. So I feel that my profile, however small/light in anyone's eyes, is still intact).
You say: As per my little knowledge, I think all your questions are totally irrelevant to answer the query. (I respect your views, while I maintain my queries.)
You say: After death of a person, all his property is ancestral as far as it relates to question of partition. (With due respect, I do not agree with you, as legally you are inaccurate while saying so.)
You say: These questions may have a role in calculation of share in case there is some coparcenary property also in hands of deceased. (With due respect, I do not agree with you, as according to me, these questions go to the root of the issue.)
You say: Here the question is if the daughters can seek partition? (That is not simple as being made out by you. The question is not whether daughters can seek partition or not, but partition of what?)
You say: The answer is just simple that daughter are always entitle (since 1955) to seek their share partitioned 'after death of father'. (With due respect, I do not agree with you.)
You say: Now doubt may arise that what is the effect of amendment effective from 09-09-2005?
This amendment does not restrict any right of daughters they were having earlier. (That is true, but please appreciate whether or not the daughters had any such right is the main question.)
This amendment gives an additional right that after 09-09-2005 the daughters will be deemed to be 'coparcener' just as sons. (The 2005 amendment relates only to co-parcenary property.)
Now it is necessary to understand that what is the effect of the amendment and what further the hon'ble Supreme Court clarified it?
Firstly if father is alive on 09-09-2005 and he is having share in 'coparcenary property' the daughters are also entitle to file a suit for partition, same as sons. This was not possible prior, in life time of father. (Provided the property in question was coparcenary. Therefore it is always necessary to determine the property being talked about is coparcenary or not).
The other major effect is regarding the calculation of share of the daughters. (I have no disagreement with you either on the example provided by you or your understanding of this part of the law.)
Take an example
A father dies before 09-09-2005 having 'coparcenary property only' and leaves behind 1 son and 1 daughter. (we are talking about coparcenary property only and not about self acquired).
As per old law, his son will get 3/4 part and daughter will get 1/4 only. (Not equal as generally understood by the common public or even some lawyers.)
The reason is - first the property will be divided among father and son 'just before the death', and the father will get 1/2 and son will get 1/2.
Now this 1/2 part of father will be divided equally among the daughters and sons that is half (1/4 part of total property) to the son and the same to daughter.
As such the son gets (1/2 + 1/4) 3/4 part and daughter only 1/4 part.
This system is vanished by amendment dated 09-09-2005. It was commonly understood that the change is applicable since 1955 but the Hon'ble Supreme Court clarified that it is prospective only and will be applicable if father dies after 09-09-2005.
It means if a Hindu dies after 09-09-2005, the property (coparcenary property) will be divided as per said example, 1/3 part to father, 1/3 to son and 1/3 to daughter. After that the 1/3 part of father will again be divided among son and daughter in equal part. As such the both son and daughter will get 1/2 part each.
Enjoy the law. (Thanks. I always do.)
Regards.
Anirudh
(Expert) 24 January 2016
Dear Mr. Subhash Chandra Jaiswal,
Please appreciate that I will not be in a position to give any answer to your query, unless you make available the specific information sought from you by me.
SUBHASH CHANDRA JAISWAL
(Querist) 24 January 2016
Respected sir , what information you want ?
My main question is - can sister of my father suit file to divide property after the grand father death (death in 1963) weither proprty is self acquired or ancestral . noted that property is transferred immediately to my father in 1963. According to mitakshra hindu act 1956 section 23.
J K Agrawal
(Expert) 25 January 2016
Thanks to Mr Anirudh.
Anirudh
(Expert) 25 January 2016
Please see my first post where I have asked for certain information, which you have not made available so far.
Guest
(Expert) 25 January 2016
Dear Author,Your Sisters have Rights in ancestral property.They could claim it legally.There is No Prescribed Time Limit for it.
SUBHASH CHANDRA JAISWAL
(Querist) 25 January 2016
Respected sir, 1-is there any difference between self acquired and ancestral property regarding share allotment under mitakshara hindu succession act 1956 (non amended) ?
2- is married daughter have right to claim in 2002 (property dividation suit) in court after death (death date 1963 )of her father even it is immediately transfer to his brother in 1963 ?
SUBHASH CHANDRA JAISWAL
(Querist) 25 January 2016
Respected sir, 1-is there any difference between self acquired and ancestral property regarding share allotment under mitakshara hindu succession act 1956 (non amended) ?
2- is married daughter have right to claim in 2002 (property dividation suit) in court after death (death date 1963 )of her father even it is immediately transfer to his brother in 1963 ?
Anirudh
(Expert) 25 January 2016
If there is no such difference, I would not be asking you for the information.
Guest
(Expert) 25 January 2016
Dear Author ,For your Last Doubts Referring Dictionary would be the Remedy For the First One and Refer my First reply and it would be suitable for your Second Doubt.
SUBHASH CHANDRA JAISWAL
(Querist) 25 January 2016
Sir my great grand father named daragahi died (death before 1956 )entastat leving property to my grand father ram sahay . my grand father ram sahay had three daughter and one son (my father ram milan ) also died entastate in 1963. After death of my grand father all property immediately transferred to my father in 1963.
SUBHASH CHANDRA JAISWAL
(Querist) 25 January 2016
My quiry is
1-can my father's sister file partition suit to divide property ( one of three sister who filed suit in 2002 of my father).
2- how much share will be allot to my father's sister according above detail .
kavksatyanarayana
(Expert) 25 January 2016
author, all legal heirs of your grand father have equal rights over his property.
Anirudh
(Expert) 25 January 2016
The property in question is 'Ancestral' property.
Since your grandfather died in 1963, without leaving any WILL, the same will devolve in terms of unamended Section 6 of the HSA 1956.
Thus, the property will first undergo partition in 1963. According to the partition, your father will get 50% share while your grandfather will get the remaining 50% share.
The 50% of the property which fell to the share of your grandfather, will go by way of inheritance equally to all his legal heirs viz., your father, and your father's three sisters.
Thus all of them will get 1/8th share each.
Ultimately your father's total share would be 1/2 + 1/8th = 5/8th in the total property. The remaining 3/8th will be going to your father's three sisters in the ratio of 1/8th each.
SUBHASH CHANDRA JAISWAL
(Querist) 25 January 2016
Sir what about my first question in the light of section 23. Can my father's sister ask property dividation (separated passation) of her share.
Anirudh
(Expert) 25 January 2016
YES. She can ask for partition.
J K Agrawal
(Expert) 26 January 2016
If only a single residence is there, it can not be parted at instance of a married daughter who is not living actually in the house. But she has a right to live in that house. She can not sale her share to others but can sale to other co owners of property.
One more thing which favor you.
If you can prove that after mutation of property in name of your father, it was wide openly accepted by all your Bhua, friends and relatives that possession of your father was as a sole owner and the sisters of father given consent (express or implied) that they do not want share and accept your father as absolute owner of property than you can take plea of an adverse possession. It is possible but very very tough to prove and plead. It requires really a very good lawyer with you.
SUBHASH CHANDRA JAISWAL
(Querist) 26 January 2016
As section 23 denied married daughter to residencial right . then can my father's sister have right to compliance of her share?
Kumar Doab
(Expert) 26 January 2016
The query has been addressed in detail.
If possible try for amicable family settlement and avoid legal tussle.
Or contest the matter on merits, if any, on your side.
SUBHASH CHANDRA JAISWAL
(Querist) 28 January 2016
Sir as mentioned above that one of three property is purchased by my grand mother in her name who died in 1958 before grand father death . both died unwilled. Is my father's sister have any right to that property?
SUBHASH CHANDRA JAISWAL
(Querist) 02 February 2016
Sir , there is an correction in my question . my grand mother purchased a property by rajistry . he died in 1950. My grand father died in 1963. Both died unwilled. My father has three sister . my query is - to whom property will go .
