Will & during partition done 1st son was major
navin
(Querist) 20 August 2013
This query is : Resolved
my father inherited a property through a will of his grand father.one of my uncle gave dad 1 lac & got a release deed done on his favour & transfered the property on his name.at this time my brother was a major 18 yrs.
1.my question is can we cancel this release deed & recover our property back?
2.can my brother have rights in this property as being major his sign was not taken during release deed.
Devajyoti Barman
(Expert) 20 August 2013
The land is your father's self acquired and hence you could do nothing about it now nor your brother could do.
You are adult now , so earn on your own than eyeing some property which is long gone.
ashok kumar singh
(Expert) 20 August 2013
good question, now find that in the even you are governed by the Mitakshara School of Hindu Law, then only your can proceed with and you will get back such property, as your brother have shares in the property. and in the event you govern under Dayabhaga School of Hindu Law, then your all hope shuttered down, and will not achieve anything.
navin
(Querist) 20 August 2013
if u cant answer pls dont give vague answers
malipeddi jaggarao
(Expert) 21 August 2013
Mr.Navin, see my reply given at similar post. If you can not understand the reply, you can ask for clarity. Both the experts have not given vague answers. You are not capable of understanding the answer as you expect the answer in your favour.
alexander
(Expert) 21 August 2013
Could you specify the date/month/year when the ancestral property was sold for one lac rupees to your uncle. Generally any transaction for a consideration would qualify as a sale. I ask you for the date because as of now the Mitakshara and the Dayabagh (mostly in the Bengal region and certain pockets in south central india) systems of hindu personal law have taken a battering by a recent enactment which demolishes the male bastion and puts daughters on equal footing with sons from the day of their birth
prabhakar singh
(Expert) 21 August 2013
I would like to assess the query only the way it has been put forward without blending any thing in it.
What querist says that his 'father inherited a property through a will of his grand father.'SHOULD BE OUR CATCH WORDS FOR ANSWER.
Considering the same, concept of Mitakshara school coparcenary requires no consideration as property acquired by 'will' would be treated to be 'self acquired property' by his father in which his sons(or daughters)can not claim any coparcenary right.
The property was transferred to uncle by father of querist can not be said to be without right if the deed of transfer is otherwise legal and registered,let it be it's any name,we would call it a sale which he is saying release.
Hence my proposed answer to both of his questions are in NEGATIVE.
And i find Mr. Barman's opinion 100% correct.
Rajendra K Goyal
(Expert) 21 August 2013
Repeated query:
http://www.lawyersclubindia.com/experts/Will-during-partition-done-1st-son-was-major-his-rights--417141.asp#.UhRJTD-Lq_I
http://www.lawyersclubindia.com/experts/Partition-deed-will-417151.asp#.UhRJfD-Lq_I
R.K Nanda
(Expert) 21 August 2013
repeated query.
alexander
(Expert) 21 August 2013
1. It may be a repeated query but it deserves an adequate response as the author of the query has legitimate doubts and so has the undersigned.
2. I need to be clear on the concept of Coparcenary property in the Mitakshara School of law.
3. My concept of the co-parcenary property ,relevant in the instant case ,is as follows:
4. One could say that Ancestral property is the species of Co prcenary property. If a Hindu inherits from his father,it becomes ANCESTRAL (emphasis added) in his hands as far it concerns his son/sons.
5. It doesn't mean that a co parcenary consists of only a father and his sons. It is not only the sons but also the grandsons and great grandsons who acquire an interest in this co parcenary property
6. In the INSTANT case let us say that 'A' ( grandfather)owns letus say self acquired property. On his death, this property shall pass to his to his son/sons . For simplification of the analogy let us say that the property passes on to his son 'B' .
7 IN THE HANDS OF 'B' it is ANCESTRAL PROPERTY AS REGARDS HIS SON 'C'. THE RESULT IS THAT if ' B' HAS A SON 'C' THEN 'C' ACQUIRES AN INTEREST IN THIS PROPERTY BY VIRTUE OF HIS BIRTH . MINORITY/MAJORITY of 'C' PLAYS NO ROLE AS FAR AS HIS INTEREST/ ENTITLEMENT IN THE COPARCENARY PROPERTY IS CONCERNED.
8. CONSEQUENTLY 'C' IS LEGALLY COMPETENT FOR ENFORCING/ PREVENTING 'B' FROM ALIENATING THIS COPARCENARY PROPERTY. 'C' is equally competent for enforcing a partition of the said Co parcenary property.
So Mr NAVIN you and your brother are legally competent in getting this sale of co parcenary property declared null and void with costs/interests. This is my opinion subject to being corrected/ over ruled by the Judiciary..
THe above is my humble understanding of the issue involved , I would be happy being corrected/enlightened on the matter by my learned colleagues.
Raj Kumar Makkad
(Expert) 24 August 2013
Well advised by experts so no more to add.
Devajyoti Barman
(Expert) 24 August 2013
MOREOVER REPEATED QUERIES SHOULD BE AVOIDED HERE.
navin
(Querist) 24 August 2013
thanxx mr alexander
alexander
(Expert) 24 August 2013
No thanks are due nor any expected. It would be matter of gratification if you succeed in getting justice
You may suggest to your lawyer to claim Mesne profits due to you . This would at least give you some leverage in negotiating a reasonable settlement should the issue is decided by the parties to be settled out of court.
prabhakar singh
(Expert) 24 August 2013
The concept Mr.Alexander holds is right but application thereof to the instant case is definitely
not.
If grandfather was the acquirer of the property and he testated a WILL in favor of his grandson(as he could have transferred it by sale or gift also without any check and balance from any quarter),then it became grandson's self acquired property through a WILL in which grand son's sons do not hold any right of coparcenary(as getting a property by will is a self acquisition of property,as it would be in case of a getting a property by gift or sale deed).
