Joint family property
Querist :
Anonymous
(Querist) 24 August 2011
This query is : Resolved
Dear sir,
My family is joint family, my grand father have three son and two daughter, my grand father died in 1974, before my grand father death my grand mother also died in 1970. After my grand father death my father is the elder son for our grand father, all property are transwer his name directly, not a will or gift. After this my father share the property with his two brother.But not give any thing in property for my father sisters.When my father and his two brother share the property after that what is my father got in share he register the property to my brother.After transwer property to my brother name by registration in subregistar office, my father is died in 2008.All property got my my grand father from his father.Now my question is i am only one daughter for my father what is share in the property from my. (This detail from karnataka i am married in 2007. Thank U
R.Ramachandran
(Expert) 24 August 2011
When did your father transfer the property to your brother?
Whether your mother is alive?
prabhakar singh
(Expert) 24 August 2011
Expert : R.Ramachandran has rightly asked you to clarify the date of transfer by your father to your brother,without which none of would be able to solve your problem.
AAK
(Expert) 24 August 2011
as the property acquired by your father is an ancestral property and not self acquired property.. you are entitled for your equal share in the property as that of your brother. Appropriate remedy is to file suit for partition for your share and declaration declaring the said transfer is not binding on you.
Querist :
Anonymous
(Querist) 24 August 2011
Dear sir,
My father transwer the property to my brother in 2005. My mother is still alive
Thank U
R.Ramachandran
(Expert) 24 August 2011
Since the property is ancestral, your father could not have transferred the entire property to your brother, that too in the year 2005 (I am not concerned as to the exact date of transfer, since even otherwise the same would get covered under Karnataka Act 23 of 1994 which came into effect on 30.7.1994).
Upon the death of your father, the property will first get automatically partitioned by operation of law - i.e. Sec. 6 of the HSA, 1956, and all the three coparcenars i.e. your father, your brother and you will get 1/3rd share each.
Since your father had died without leaving any WILL, his 1/3rd share will go by way of inheritance equally amongst all his legal heirs. His legal heirs are his widow (i.e. your mother), your brother and you.
Thus, upon proper partition, your brother would get 4/9th share (1/3rd + 1/3rd of 1/3rd).
Similarly you will also get 4/9th share.
Your mother will get the remaining 1/9th share.
You have to immediately move the court to get your share.
prabhakar singh
(Expert) 24 August 2011
one answer in haste has occurred,viewing the same i wish to inform you that prior to Hindu Succession (Amendment) Act, 2005(39 of 2005) which came in force with effect from 9th september 2005 ,daughters were not treated at par with sons with respect to ancestral properties forming a coparcenary.It is this amending act that took the charge to treat daughters as coparcenary as much as the sons were there before.
YOUR RIGHTS AS DAUGHTER ARE SAVED BY THIS LAW AND DEED OF TRANSFER BY YOUR FATHER MADE IN 2005 (as you state) is not binding on you and can not curtail your rights conferred by this Act.
Had it been a registered or court decree transfer by partition made or passed prior to 20th day of December, 2004,it could have validly curtailed your rights.
I am citing the relevant saving provision of this amending Act for your ready reference :
" Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.'."
IT WAS THIS REASON THAT Mr.R.Ramchandran asked to clarify the date of transfer.
IT IS JUST A LUCKY SIP FOR Expert : AJIT whose opinion goes correct even without knowing the date of transfer.
So what ever share your father got in partition with his brothers shall now be shared by you,your brother and mother as shown by Mr.R.Ramchandaran ignoring the transfer made by him in favor of your brother alone in 2005 as it does not relate back to date 20/12/2004 as required in the Amending Act(as you may or may not be from karnataka).
M/s. Y-not legal services
(Expert) 24 August 2011
Nice answer ramachandran sir.. I hope the author should be cleared now .nothing to say more.
