Status of a case filed as co complainant by a woman in property case
j.r.kota
(Querist) 15 November 2011
This query is : Resolved
Dear Sir,
The Hindu Succession Act was amended in 2005 and made effective from 9th September 2005, where by a daughter has been recognized as a co-parcener in her own right like a son. A married sister had joined her brother in filing a suit against their mother, who is holding in her name (mother's name) the ancestral property of the father(father is alive)on 27.12.2002, much before the amendment in the Hindu Succession Act, came into existence. Does the suit sustains in the court. Does the Court recognize the right of the Daughter to sue the mother for a share in the property? Can the Court overlook the position/status of the married daughter as it existed on the date of filing of the suit and treat the case as having filed by the son only and deliver the judgement or should dismiss the case as not maintainable saying one of the parties to the suit does not have a right to sue the mother, based on the law as was applicable on the date of the institution of the case.
Please give your reasoned and quotable opinion instead of a single line opinion.
Regards.
j.r.kota.
Rajeev Kumar
(Expert) 15 November 2011
If the suit is instituted after the amendment then it will be applicable otherwise her claim will be rejected by court
prabhakar singh
(Expert) 15 November 2011
Mr.Kota!
First of all explain please on what basis the
property in name of mother is being called ancestral.???
From whom the mother has inherited it???
Or it was purchased in her name by her husband???
Or the husband inherited it from his father and then transferred it inhis wife name??
If so then please also tell how the father of husband got it?? buy self purchase or by inheritance from his father???
Unless you tell these facts you have no right to shoot so many questions on us???
Raj Kumar Makkad
(Expert) 15 November 2011
I do agree with prabhakar singh. First of all status of property and mode of transfer as asked for.
Advocate Rajkumarlaxman
(Expert) 15 November 2011
I do agree with prabhakar singh. your matter is not clear enough. you say that father is alive. then in that case it is her share of property. how was it transferred to her is again another question to be answered and how it was devolved to her should be clearly stated . we can opine after that.
j.r.kota
(Querist) 16 November 2011
Dear Sirs,
At the outset I am really thankful for the public service you are all providing by sparing your valuable time, by guiding the public in matters which are of utmost importance. It assumes added importance because when you give your valued opinion, you are not guided by any other motive other than social service. Really in the present day environment it is a boon and creates confidence in the humanity in the society- more so when there are falling standards every where.
I am happy that you all have asked probing questions, indicating the seriousness with which you are trying to help litigants by providing your valuable expert opinions. It appears you got hurt by the last sentence of my query. Please let me assure you that there is no intention to be little or show any disrespect to any one. The only idea was to help generate a healthy and purposeful discussion.
Now coming to the points raised by you-
As per the documents on record- the great grand father of the children know the mother, probably when she was three year old, even before the matrimony, being a neighbor, had gifted the property to her in the year 1953. Subsequently she got married to his grand son, who is now the father of the children.The grandfather in the year 1989 has executed a release document for the property in favor of the mother, who is now his daughter in law.On the strength of the release document the Thahasildar approved a separate khatha in the mother's name. Over a period of time the grand father had expired, and a portion of the property sold to a third party for consideration and duly registered. The father's brother has filed a case of partition in the court for all the properties of his father including this property. To avoid the sharing of the remaining property with his brother and to re claim the sold property from the third party, the father made his children - two daughters and one son to file a case in court contending that the mother is never a co-parcener in the property and they the children are the rightful owners of the property. By creating false documents and with connivance with the revenue officials the father succeeded in getting a order for the transfer of the property in the name of the children.The father could only - for the time being succeeded in getting the remaining portion of the property re transferred in the name of his children, on the strength of the order passed by the revenue official, who is a quasi judicial body. Now his attempt is to try and get the sold out portion also transferred to his children. The entire game plan is to beat the brother and the third party of their right to the property. There are enough number of procedural and administrative loopholes in the whole episode to expose the direct role of the father and the indirect role of the mother and children. A closer look at the entire documents would give away the fraud.Unfortunately in India any thing can be manipulated. To conclusive prove the fraud legal issues are more important. The administrative and procedural lacunae may be over looked by the appellate court as curable/probabilities or on similar grounds. But legal position cannot be subjected to whimsical interpretation. In light of this view I am paying more attention to legal issue rather than others and in the process sought your opinion
Regards
j.r.kota.
