Hindu succession act 1956 and amended act 2005
perumal
(Querist) 18 September 2018
This query is : Open
Sir,
A property of two houses jointly constructed stands in my mother’s name. She died during the year 1996, well before the enactment of amendcd Act, 2005. The legal heirs are as follows.
1. My father – Widower - died during 2012, ie after the enactment of amendcd Act, 2005
2. Myself - only Son
3.Ist daughter – married before the death of my mother i.e., during the year 1979
4. IInd daughter – married before the death of my mother i.e., during the year 1983
My father while he was alive, released his 1/4th UDS share of one house (among two) by registerd deed to one of my sister and also made a open in the centre wall between two houses and kept open to the other house which is under my occupation and enjoyment. Through the new opening door, my sister who enjoyed the other house and IInd sister (she was allotted a house by my father in her name by regd.deed) blocked my kitchen, bath room, latrine and stair to upstair threatening that equal share should be abortioned and partitioned.
I have not yet approached any court to seek remedy.
Now, shall this issue will attract sec 23 of hindu succession Act 1956.
Please kindly inform the legality over this issue to proceed further.
Perumal.M
Shashikant V. Patil
(Expert) 19 September 2018
When did your father executed the registered deeds in favour of your sister ?
perumal
(Querist) 20 September 2018
Sir, 3rd october, 2005.
perumal
Shashikant V. Patil
(Expert) 21 September 2018
As regards daughters born before 9 Sep 2005 would get rights in coparcernery property upon death of their father- co-parcener on or after 9 Sep 2005. However, Section 23 in H.S.A amended dis entitle the dwelling house rights in Joint family house property to the daughters. Its up to male member to decide for partition and allot any premises for dwellng. In your case, your father already executed a registered deed in favour of your sister on 3rd Oct 2005. Under this section 23, you may challenge this and invalidate the transfer.
perumal
(Querist) 21 September 2018
Sir, thank you for your kind advice.
Perumal.M
Hemant Agarwal
(Expert) 23 September 2018
INTROSPECT ON THIS:
1. Title-Ownership of Property/s vests with Mother.
2. ONLY a Title-Owner can execute a Release /Relinquish Deed AND not a heir apparent (imaginary claimant).
3. Father can be a Title-Owner (self-acquired) of the said property ONLY "IF" the property was transferred in his name on the revenue records based on the deceased's Will /Court orders. ELSE the Father CANNOT execute any Release /Relinquish /Gift /Sale Deed of the deceased's property. PERIOD.
4. ALL the residual Legal Heirs of the deceased shall have equal rights over the Mothers property, barring the daughters, provided there is no will of deceased mother.
Keep Smiling .... Hemant Agarwal
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perumal
(Querist) 02 November 2018
Respected Hemant Agarwal sir,
Please kindly inform me further regarding the applicability of Sec.23 of Hindu Succession Act 1956
While I have gone through some judgements of Apex Court, in one case it is noted as below.
“ The recent precedents of the Hon'ble Apex Court are consistent in laying down the law that in matters where no partition was effected anterior to 20th December 2004 or no final decree was passed or any testamentary disposition took place before that date, the daughters on par with the sons could seek partition as the co-parceners”.
In my case also no partition has not yet been made till date and as well as no case is pending in any court in this regard. If it is so, shall my sisters be treated on par with me (son) and could seek partition as the co-parceners.
Please kindly explain, sir.
