Is sec 23 of hindu succesion act, 1956 applicable on a daughter who died in 1996
savitri anamouli
(Querist) 22 June 2016
This query is : Resolved
Following the judgement rendered in
Civil Appeal No. 7217 of 2013 Supreme Court Judgement in Prakash & Ors v. Phulavati & Ors of 16 October 2015
facts of a case as below continue to be in question
a. An man bought a house ( living on first floor and rented ground floor- rented portion covered under rent control act) in 1944.
b. In 1944, he had 1 unmarried son and 1 unmarried daughter + 1 married daughter who never lived in the house.
c. He died intestate in 1964. His married daughter died intestate in 1997.
d. The son of the married daughter now wants a partition of the property claiming that
- his mother was a legal heir
- above SC judgement is not applicable to him but only to his sister
- since there is rented portion the house, Sec 23 of HSA, 1956 cannot become applicable (section was deleted in 2005 amendment)
Is he right in his assertions ? Will he be eligible to 1/3rd of the property ( that is his mother's entire right in case she was elgible in the first place since she was already married before the property was acquired by her father and moreover she died in 1997)
Kumar Doab
(Expert) 22 June 2016
Apparently it is self acquired/earned property, and has not been partitioned.
The daughters have a share.
All ClassI legal heirs i.e. wife, sons, daughters have equal share.
savitri anamouli
(Querist) 22 June 2016
Sir thank you.
Right of married daughter during her lifetime is not disputed. Claim of her son to her entire share is the matter in question.
Since she was not alive in 2005 can her son claim his right now.
Kumar Doab
(Expert) 22 June 2016
Regret by oversight did not notice this point.
In such case since daughter has no share her heirs may not have share.
However you may show all docs on record to a very able counsel specializing in such family/property/revenue/civil matters, for a considered opinion.
Guest
(Expert) 22 June 2016
I endorse the views of Shri Kumar Doab.
P. Venu
(Expert) 23 June 2016
How are you connected with the issue?
savitri anamouli
(Querist) 24 June 2016
Sir,
I am a mediator between the two sets of persons. The problem is that each side has been given different advise.
Basically , it is only the son of deceased daughter who is creating an issue. His sisters have no claim under the SC Judgement stated above and are also not interested in anything.
Therefore if Sec 23 is applicable to entire premises - rented and self occupied portions, then the son's claim becomes invalid as his deceased mother's right itself ended with her death and her share would devolve on her surviving siblings.
thanks.
Kumar Doab
(Expert) 24 June 2016
You have posted that:
"his deceased mother's right itself ended with her death and her share would devolve on her surviving siblings."
If this has already been concluded by both parties then settle the matter by registered family agreement and close the matter.
Thereafter there shall be no scope for any litigation.
savitri anamouli
(Querist) 24 June 2016
Sir,
Only the son of the deceased daughter is not agreeing to this .
He believes the SC judgement only applies to his sisters and that Sec 23 is also not applicable as there was a rented portion to the house when his grandfather , aunt and uncle were living in it. According to him Sec 23 is applicable only if ground and first floor were both self occupied and not when ground floor was given for rent.
Thanks.
Kumar Doab
(Expert) 24 June 2016
Is the tenant owner?
Either the parties may decided between themselves or linger in courts.
savitri anamouli
(Querist) 24 June 2016
No sir. Tenant is not owner.
I am trying to help to avoid them going to court to avoid family relationships getting spoiled and ofcourse the time and money.
If we can show this son of deceased daughter that he has no case then it will help immensely. hence I had put up here to see if experts can shed light
thanks.
P. Venu
(Expert) 24 June 2016
The repealed Section 23 read as follows:
“23. Special provision respecting dwelling houses. —Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.”
Prima facie, you are proceeding under wrong presumptions.The said daughter or her children had never lost her right in the property under the repealed provision or the law as it stands today.
