Hindu secession act
jitender pawaria
(Querist) 22 September 2011
This query is : Resolved
if any girl file a suit for declaration against his father for her share from ancestral property. her father execute aggrement to sell in February 2004. but later on her father denied and in whose favor execute aggrement to sell he filed suit for specific performance and Ld. Court decree the suit her father went in to appeal was also dissmissed the her father filed appeal in high court and grant stay to him.
In between she filed that suit for declaration for her share.
now my querry is that can suit for declaration maintain insted of suit for partition.
second query is that can she claim her share now because her father execute aggrement to sell before 20th Dec. 2004.
Guest
(Expert) 22 September 2011
No the suit for partition itself gives the relief and no seperate relief is not required.
No she cannot claim any share.
prabhakar singh
(Expert) 23 September 2011
now my querry is that can suit for declaration maintain insted of suit for partition.???????????????
Answer!! yes it can be maintained in the circumstances detailed by you,even with out any relief of partition.
second query is that can she claim her share now because her father execute aggrement to sell before 20th Dec. 2004.????????????????
ANSWER :If the HIGH COURT decides the agreement made before 20/12/2004,legally enforceable,she shall have,no share at all
as she did not have a share before amendment of 2005,recognising her share only if not taken away before 20/12/2004.
That is why she has filed only declaration suit in which court fees is fixed and is much less than court fees payable on a partition suit.
kuldeep kumar
(Expert) 23 September 2011
yes if high court decide agreement to sale legally enforceable then only.
J K Agrawal
(Expert) 23 September 2011
Respected Sirs
I think somewhat differ.
Before deciding a question of transfer of property it is to be decided that if any partition has taken place before 20-12-2004 or not.
If partition with registered deed is not taken before 20-12-2004 the Daughter is entitle to share in property undoubtedly.
Only After that the question arises about the validity of any transfer made before 20-12-2004. This question is not only between former purchaser and seller but the Daughter is also party to that question as she entitles the property.
Guest
(Expert) 24 September 2011
I also endorse the opinion of Shri J.K. Aggrawal.
M V Gupta
(Expert) 24 September 2011
The property is said to be ancestral. Therefore it constitutes HUF property. As such, the daughter also has right in it by birth. This being the legal position, even if the father has executed the agreement for sale before the December, 2004, she can claim for a share in the sale proceeds. The suit for declaration presumably for declaring her right in the property would be maintainable.
jitender pawaria
(Querist) 25 September 2011
I highly thankful to all of you but according to HUF girls is not co-parcner in the joint family before 20th Dec. 2004 if she is not a coparcner then how can she claim her right in ancestral property.
Or if her father enter in to compromise with party on the basis of said agreement then How can she claim in her father ancestral property because her father executed the agreement in Feb. 2004
prabhakar singh
(Expert) 25 September 2011
The point is well clarified by me,there emerges no confusion at all.
pritamsaini
(Expert) 28 September 2011
firstly only unmarried daughter was the member of huf prior to amendment of 2005.second the daughter have no right in ansestal propert but it made clear only male were copacener in annsestral property but as per notional partition share of father will be go to his all the 1st class heir. thirdly even son also cannot filed a suit to restraind father prior to sale and only remmedy to him chellenge after comletion of sale on the ground sale is without legal neessery .in the present suit sale is not confirmed yet.the suit filed by daughter is only a cleaver drafting that is why suit for declaration in place of injuction is also hit the right of manager/karta of family.therefore suit is not maintainble barred by 41 h of specific relief act.
