Partition by daugher
basavaraj shiromani
(Querist) 11 February 2014
This query is : Resolved
Mr.'A' dies leaving behind his 3 son 'B''C' and 'D'. Mr.'B' is having a daughter by name 'X'. There is no partition between 'B'C'and 'D'. The daugher of 'B' want to file a partition suit against 'B' 'c' and 'D' for partition and separate possession of her share out of her father's share which is not yet decided among all brother who are living together.
whether she is entitle to get partition effected in an un divided ancestral property
are there any rulings to that effect ?
ajay sethi
(Expert) 11 February 2014
on what basis do you say it is ancestral property ?
did A leave any will ?
in case he died intestate his three sons have 1/3rd share in property .
she cannot file any partition suit for claiming her share out of her father share during life time of her father .
for judgement visit indian kanoon .com
Rajendra K Goyal
(Expert) 11 February 2014
Partition suit can not be maintained by daughter in the given facts.
basavaraj shiromani
(Querist) 11 February 2014
Thank you experts, but i need rulings in this regard. It is true that in an un divided interest, daughter cannot claim partition.
ajay sethi
(Expert) 11 February 2014
we dont provide citations . since you are an advocate you can do some research on your own
Advocate. Arunagiri
(Expert) 11 February 2014
I am of the opinion, that the daughter is having the right to claim her proportionate share in the ancestral property.
Rajendra K Goyal
(Expert) 12 February 2014
Agree, citation not provided in this section.
basavaraj shiromani
(Querist) 12 February 2014
Ajaya and Rajendrajee, whatever opinion given must be supported by certain stand either by law or rulings. there is no mistake on my part to ask if there are any rulings in this regard. if they are not available no problem, but you cannot say that in this section you don't provide or citation not provide is all will not bar under lawyers club expert opinion is concern. however thank you for your suggestion.
Anirudh
(Expert) 12 February 2014
Dear Mr. Basavaraj,
Any co-parcener can demand partition. It does not require any ruling.
There is no rule which says that a co-parcener cannot demand partition.
Apart from the generality of the above position, what is of paramount importance is to decide whether the property in question is Ancestral or not.
This becomes important as, the above law/ruling position is applicable only in the case of ancestral/huf property and not to a separate property.
All the property one inherits would not automatically become 'ancestral'. Therefore, you have to first be sure that the property is ancestral.
basavaraj shiromani
(Querist) 12 February 2014
Thank you Mr. Anirudh, but I want to know that, all three brothers are not intended to continue their joint status in the family and under this circumstance, one can not accept that one of the brother is having an independed proprty. Therefore unless and until his status is not divided, how his daugher can claim partition ? this is my simple question. thank you
Anirudh
(Expert) 12 February 2014
As already submitted, so long one is a coparcener, one can certainly demand a partition. Upon such a demand, the partition has to be effected. No partition had been done earlier and her father has not been allocated a share is no ground to say that she cannot seek partition. In fact, the partition will become a necessity once such a demand is raised.
basavaraj shiromani
(Querist) 13 February 2014
Thank you Anirudh for your valuable advise, but in my opinion, in an undived interest in a joint family, no doubt daugther of a co parcener share will be fixed subject to variations of increasing or decreesing members in the family, but alone she cannot enforc her rights until her father halve is not determined and when he is not ready to separet from the joint family. How the court will determine the share of a particular person who is not claiming the share. Then how it is posible to determine the share of a daughter of that persons who's interest is not divied actually.
with regards
Advocate. Arunagiri
(Expert) 13 February 2014
I agree with Mr.Anirudh on this partition point.
The daughter is having the right to demand partition, even though the father is not ready for it.
If she files a partition suit, she can add her father as a Defendant.
Practicaly, the property will divided, her father's share will be arrived at first, on the share of the father, this daughter will get her share.
Consent of the father is not required.
Anirudh
(Expert) 13 February 2014
What is to be first ensured is that the person seeking partition is a co-parcener.
Once this is ensured, one can definitely seek partition. This is despite the fact that no partition had taken place so far, and none of the other coparceners are interested in effecting a partition.
The moment any coparcener approaches a court seeking partition, by operation of law, the shares of each of the co-parceners would get crystallised. The Court would issue preliminary decree. After the partition gets effected by metes and bounds, a final decree would get passed.
