partition of property of grand father
umesh seth
(Querist) 08 November 2009
This query is : Resolved
My grand father got expired in 2002. My grand father has only one son and one daughter.We were two brothers and one sister. My father has one -inimmovable propery. My elder brother got collapsed in car accident in 2004 My sisiter in law (deceased brother's wife)filed a suit against my father with regards to immovable property which he got from my grandfather without will with the purpose for seeking the partition of such property. My grand father did not execute the WILL for such property. My query is whether my sister-in-law (my deceased brother's wife)can claim in the ancestral property which my father got from my grandfather even when my father is alive.
Please answer with reference of the relevant act for partition or distribution of ancestral property.
Raj Kumar Makkad
(Expert) 08 November 2009
No. As your father is still alive so your Bhabhi has got no legal right to get any share out of the ancestral property still vesting in your father. The law of inheritance is very simple. Though the property is an ancestral and every member of the Hindu Undivided Family has is share therein but the same cannot be partitioned during the life time of Karta.
A V Vishal
(Expert) 09 November 2009
Maintenance under the Hindu Adoptions and Maintenance Act, 1956
Section 19 provides for maintenance of widowed daughter in law. The section says;
1. A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law:
Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance-
(a) From the estate of her husband or her father or mother, or
(b) From her son or daughter, if any, or his or her estate.
2. Any obligation under sub-section (1) shall not be enforceable if the father-in-law has no means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.
A V Vishal
(Expert) 09 November 2009
The common belief that under Hindu personal law, the daughter has equal rights with the son, is because of
Section 10 of the Hindu Succession Act, 1956 which unequivocally declares that property is to be distributed equally among class I heirs as specified in the Schedule (which lays down daughters, mothers and widows as class I heirs). But nothing could be further from the truth.
Under the customary Hindu law and the concept of mitakshara coparcenary property, a Hindu undivided
family consists of a common ancestor and all his lineal male descendants, together with wives or widows and unmarried daughters. A Hindu joint family is a unit and is represented by the karta or head.
A coparcenary is a narrower body of people within a joint family, and is crucial to the inheritance of property under Hindu law. A coparcenary comprises of the father and his three male lineal descendants. A
coparcener has an interest by birth in the property of the joint family. This interest is not a quantified one; it changes with births and deaths within the family. Every coparcener has the right to be in joint possession and enjoyment of joint family property. A coparcener also has the right to claim partition, to get his interest individualized and separated. However, the person's separate interest becomes communal property again on the birth of a son who acquires an equal interest in the property. On a coparcener's death, his interest passes to the other coparceners. Women, be they daughters, mothers or widows, were not part of the coparcenary and could not claim partition.
The Hindu Succession Act retained the coparcenary. In fact, Section 6 specifically declares that on death, the interest of a male Hindu in mitakshara coparcenary property shall devolve by survivorship to other members of the coparcenary, and not by succession under the act. However, it laid down that the separate share of the deceased, computed through the device of a deemed partition just before his death, would devolve according to the succession act.
The act did not clearly spell out the implications of exclusion from membership to the coparcenary in respect Sharing the mood of inheritance of property. Thus, if a Hindu male died leaving a widow, a son and a daughter, then, according to Section 6 of the act, there will be deemed to be a partition just before the death of the person. In this, the
father, mother and son each gets an equal one-third share of the property. The father's half will be shared equally by his widow, son and daughter as his class I heirs. In effect, therefore, the daughter gets a share which is much smaller than that of the son, who gets his own one-third share from the deemed partition as a coparcener and an additional one-third from the share of his father. The privileged right by birth of sons in joint family property has been considered sacred and inviolate. It has also played a major role in the preference for sons in Indian society.
