Partition deed
venkat pandurangam
(Querist) 09 September 2012
This query is : Resolved
My niece is given diverse notice by her husband .She has twins of 7 years old.Her husband has an ancestral property of 50 acres.
He has gone and did a partition deed along with his sisters and mother transferring unequal portion.
Can my niece file a suit in the family court to make the deed null void till the children are grown up as she is custodian of the children presently
venkat pandurangam
(Querist) 09 September 2012
Thanks for the information sir
Can you please refer any by law to procced with the same
prabhakar singh
(Expert) 09 September 2012
If it is ancestral property inherited by him from his father then his children male or female have a share by birth in it as coparcenars and can demand partition of that share by suit of partition against.He can not by any method legally surrender their rights in any body favor.
The right of COPARCENARY is recognized by section 6 of the Hindu succession Act which reads as below:
"6. Devolution of interest of coparcenary property
When a male Hindu dies after the commencement of this Act, having at the time of his death an interest
in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon
the surviving members of the coparcenary and not in accordance with this Act:
PROVIDED that, if the deceased had left him surviving a female relative specified in class I of the
Schedule or a male relative specified in that class who claims through such female relative, the interest
of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship.
Explanation I: For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be
deemed to be the share in the property that would have been allotted to him if a partition of the
property had taken place immediately before his death, irrespective of whether he was entitled to claim
partition or not.
Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person
who has separated himself from the coparcenary before the death of the deceased or any of his heirs to
claim on intestacy a share in the interest referred to therein."
For a suit against father by minor children
mother can seek appointment as next friend guardian.
The suit can be instituted under provisions of order XXXII of Civil Procedure Code which reads as below:
"ORDER XXXII. SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
1. Minor to sue by next friend
Every suit by a minor shall be instituted in his name by a person who in such shall be called the next friend of the minor.
1[Explanation-In this Order, "minor" means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]"
Anirudh
(Expert) 09 September 2012
Dear Mr. Venkat,
You have to throw more light on the property - like
(i) how did your niece's husband got that property;
(ii) from whom did he get it;
(iii) in which year did he get it;
(iv) if he had got it from his father, then you have to give answer to questions (i) to (iii) above, in respect of his father;
(v) again if the said father had got it from his father (i.e. grand father of your niece's husband), again the questions (i) to (iii) have to be answered w.r.t. the grand father.
Only after clearly knowing the details,it will be possible to give a very clear answer to your query.
