Inheritance to married daughters
shalini
(Querist) 20 December 2010
This query is : Resolved
We are two sisters and married. We do not have a brother but have cousins. they are my father's brother's sons and we are in bad terms and do not want the ancestral property to go to them. What can i do to stop my father from transferring the property to them.
M.Sheik Mohammed Ali
(Expert) 20 December 2010
the property is made by ancestral property, if yes, so no one can stop the inheritance.
R.Ramachandran
(Expert) 20 December 2010
Dear Ms. Shalini,
You say that the property is ancestral.
Can you please tell me whether the property is currently in your father's name?
How did your father get his property in his name?
Where is the property situated?
When did you sisters get married?
What about your mother?
After knowing the above facts from you, I will give my view on the matter.
adv. rajeev ( rajoo )
(Expert) 20 December 2010
Property is ancestral property, you have share in your father's share.
Y V Vishweshwar Rao
(Expert) 20 December 2010
You have right to file partition Suit claiming your share from your father in ancestral property - your father may give /transfer his share to the persons he like including your cousins.
Parveen Kr. Aggarwal
(Expert) 21 December 2010
In the ancestral property, you and your sister also have share along with your father. Your father can at the most transfer his share in the property and not yours or of your sister.
You can restrain your father from transferring his share in the property by initiating proceedings under section 22 of the Hindu Succession Act, 1956 as you have preferential right in the property.
Section 22 is reproduced below:
"22. Preferential right to acquire property in certain cases:- (1)Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2)The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3)If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation.-In this section, " court " means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the
State Government may, by notification in the Official Gazette, specify in this behalf."
R.Ramachandran
(Expert) 21 December 2010
Dear Mr. Praveen,
Section 22 has no application in this case. Sec. 22 would come into play only after partition has taken place, and if the property devolves upon two or more heirs, and when any one of such heirs proposes to transfer his or her interest in the property or business.
The querists have not reached that stage yet.
Parveen Kr. Aggarwal
(Expert) 22 December 2010
Mr. Ramachandran,
It is nowhere provided in section 22 that it applies only after partition takes place.
Pritam Saini, Advocate
(Expert) 23 December 2010
I think section 22 not apply agriculture or residential house its apply only in shops ete in which joint businesses are running and any co-sharer sell his share then it apply. I am 100% sure its not apply on agriculture land.As per fact daughters(married or unmarried) are corpacener after amendment and they claim partition.
shalini
(Querist) 23 December 2010
This is in response to Mr Ramchandrans questions.
the ancestral property has been transferred naturally to my father and we have not made any effort to register the property on anyone's name.
This is in kanpur.
shalini
(Querist) 23 December 2010
We want our mother to get her share in the property because my parents are in a disturbed relationship and she has no seurity for her. My father intends to pas on everything to our cousins.
R.Ramachandran
(Expert) 23 December 2010
Dear Mr. Praveen,
Section 22(1)provides "devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred."
The question of devolving upon arises only when there is partition. Only upon such devolution of the share, the question of any of the shareholder proposing to transfer his or her interest to any third party arises. In that event, the question of right of preemption by other shareholder in the property would arise - otherwise not.
IN THE ALTERNATIVE, PLEASE INDICATE HOW WITHOUT PARTITION ANY ONE CAN SAY WHAT 'ONE'S SHARE IS' IN MEATS AND BOUNDS? AND WITHOUT MEATS AND BOUNDS PARTITION, HOW CAN ANYONE THINK OF TRANSFERRING THE PROPERTY?
In the instant case, no one has as yet got any share. Therefore the question of anyone trying to transfer their interests or anybody else trying to exercise the right of pre-emption does not at all arise.
R.Ramachandran
(Expert) 23 December 2010
Dear Ms. Shalini,
From your reply it appears that the property is not a self-acquired property of your father.
The property is the share which came to him from his father / grand father etc.
Since this is an ancestral property of your family, you both the daughters along with your father only have the right and no one else. Your father cannot transfer the property to anybody else i.e. he cannot transfer it to your cousins. Even if he does it, it will become invalid, the moment you sisters start questioning the validity.
As very rightly pointed out by Mr. Y.V.Rao, the property has to be partitioned only between you two sisters and your father in the ratio of 1/3rd each.
After such a partition, your father has every right to do whatever he wants with his 1/3rd share.
If you so wish, you both sisters can ask for partition from your father through a legal notice. The moment you ask for such a partition, your father would be bound to effect the partition, and would not be in a position to transfer the property in favour of your cousins.
Parveen Kr. Aggarwal
(Expert) 24 December 2010
Mr. R. Ramachandran,
As per the query, the property is ancestral and devolved upon her father, Ms. Shalini and her sister upon death of her grandfather. One of the Class I heir, i.e. her father proposes to transfer his share (as he cannot transfer the share of others) in favour of her cousins, Ms. Shalini and her sister have preferential right in the property. Is it not so?
If partition between father Ms. Shalini and other heirs has already taken place by meets and bounds then all have their ascertained shares and the question of transfer of other's share by any co-heir does not arise at all.
R.Ramachandran
(Expert) 24 December 2010
Dear Mr. Praveen,
If you refuse to see the legal reasoning, I cannot help.
But let me try one more time to make you understand.
The Section 22 applies to a situation, where the property is divided and given to the shares of the entitled persons - say brothers and sisters. If one or two of the brother(s) or sister(s) want to dispose of/transfer their share then the other brother(s)/Sister(s) who have got their share in the property, have a right of preemption to get the property transferred in their favour - INSTEAD OF ANY THIRD PARTY. In other words, the right of pre-emption envisaged under Section 22 is in between the persons who have got their respective share in the property.
In the instant case, Shalini and her sister have not even got any share in their favour so far. Therefore, they cannot invoke Section 22 as suggested by you.
