gopi (SW Professional) 15 April 2009

How to Proceed further

My grand Father owns 2 houses(side by side) and died in 1977 leaving behind his wife and 10 children (5 male and 5 female). All 4 sons left with their wife’s and are living separately since 1977.All daughters were married before 1997.My father was taking care of my grandmother and living in one of the house. My grandmother died in 1997 after leaving behind a Registered(in year 1995) will that her share goes to my Father In the year 1993 the house we were staying collapsed completely and my father with the approval (verbal) of remaining 4 brothers constructed new house (ground floor and first floor) .In 1999 one of the daughters expired. In 2007 , 3 sons and remaining 4 daughters sold their share (registered) to my father . Now we are making constructing in the backyard of our present house .1(say “A”) son who was against my father was against the Registration of share transfer. he(say “A”) has sent a legal notice through his advocate saying to stop the construction and stating the property was his father’s(my grand father) self acquired property so the female heirs cannot be treated as co-parceners and as he was not involved in the 2007 registered deed ,so he is calling it as a bad deed..

Note-1 daughter died with no heirs

My questions are :-

1)Can the court cancel the registered deed in 2007 in which 3 sons+4 daughters sold their share to my father as one of the son (‘A’) was not present or invited.?

2)Do daughters have share in property which is father’s self acquired property and father died with out registering any will?

3)we are ready to pay 1/10^th share to him as we have 9 shares [4 sons(including my father)+4 daughters my grand mothers share]

4)As we have constructed the house in 1993 in place of completely collapsed house ,we want the court to remove the valuation of building and take only land price while giving him his 1/10^th share. Is this possible?.

5)Can he stop the on going construction in the current house. We have already paid the amount to the contractor, so we will be at loss if work stopped. what should we do if we want work to go on.

How to Proceed further

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10 Replies

Y V Vishweshwar Rao (Advocate ) 15 April 2009

1The Duaghter share with heirs will be merged inthe sahres of remaingn 9 persons

2- Your share 7 + your fahter +Grandmother share in all 9 shares are with you

3- Father died with outany Will - all the sosn and daughters adn Wife will acquire equal shares

4- Your proposal to pay 10 % value of the land is correct

5- You have cosntrcuted the hosue in the year 1993 it is settled can be distrubed

6- There is no possibility to A to stop the work as his share in the proerty is not majority share and it is 10 % only , he can nto cancell the Regd Deed of 2007 at the most he can insist for value of hsi share in the land , not in the buildigns constrcuted or to be cosntructed - development of proerty can nto stopped - equities in delivering the share of the A has to be worked out .

Y V Vishweshwar Rao (Advocate ) 15 April 2009

1 Daughters share with her out heirs- will be merged in the remainng shares of 9 share holders

2-You have cosntrcuted the house in the year 1993 it is settled and now can not be disturbed

Admittign the share of- A -Equities to be worked out

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A V Vishal (Advocate) 15 April 2009

Kindly note that your grandfather expired in 1977 and your grandmother in 1997, based on which I have formed my opinions.

1)Can the court cancel the registered deed in 2007 in which 3 sons+4 daughters sold their share to my father as one of the son (‘A’) was not present or invited.?

Ans. As per my opinion the 4 daughters who sold their share have no right in the property and the property should had been divided into 6 parts ( 1 part of mother and the remaining 5 parts between the sons). Since your grandmother willed her part of share in your father's favour, your father is entitled for her share and his own 1/6 share. Since other 3 sons sold their share it is not a problem.

2)Do daughters have share in property which is father’s self acquired property and father died with out registering any will?

Ans: The old Hindu Sucession Act did not consider a female as a Co parcener, however the amended act of 2005, considers the same and the amendment has been given a prospective effect and not retrospective effect.

3)we are ready to pay 1/10^th share to him as we have 9 shares [4 sons(including my father)+4 daughters my grand mothers share]

Ans: Your Uncle is entitled to 1/6 share in the Property.

Ans: Depends on the facts of the case.

5)Can he stop the on going construction in the current house. We have already paid the amount to the contractor, so we will be at loss if work stopped. what should we do if we want work to go on.

Your uncle has got a share in the property and he can seek injunction against continuation of the work.

gopi (SW Professional) 15 April 2009

Thanks a lot Sir for your speedy reply, Your points add confidence to my way addressing this issue .

gopi (SW Professional) 15 April 2009

I am not an advocate but i would like to discuss with Shri .A V Vishal as my opponent advocate will be arguing against me with the same text as you advised me. I will be able to know on what grounds my opponent advocate will be arguing.

Sir,I have read “Hindu Succession (Amendment) Act, 2005” and not able to understand on what basis you are arguing a daughter cannot have right in the property

The Hindu Succession (Amendment) Act is to remove gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the following rights to daughters under Section 6:

The daughter of a coparcener cell by birth become a coparcener in her own right in the same manner as the son;
The daughter has the same rights in the coparcenary property as she would have had if she had been a son;
The daughter shall be subject to the same liability in the said coparcenary property as that of a son; and any reference to a Hindu Mitakshara coparceners shall be deemed to include a reference to a daughter of a coparcener;
The daughter is allotted the same share as is allotted to a son;
The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;
The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter.

More over when my uncles advocate sent a legal notice and quote of objecting daughter’s share is as follows “the female hairs of ‘X’ (my grand father) cannot be treated as coparceners in the father’s self acquired property and a female heir can be treated as coparcener in the joint family property as per Hindu Succession Amendment Act of 2005 (Act 3/9/05) and which came into force on 09.09.05 and according to Sec 23 of Hindu Succession Act 1956, female heirs cannot enforce partition of dwelling houses as they are not entitled to claim division of dwelling houses.”

Sec 23 of Hindu Succession Act 1956

[23. Special provision respecting dwelling-houses.-- Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:

Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.

(Selling of half share by sole male heir is an indication of his desire to partition and there cannot operate any restriction on the female heirs.-Mooka Ammal v. Chitradeva Ammal 1980 HLR 353)]

So clearly the above act gives share to daughter when other male heirs are dividing their share which is similar to our case where 3 brothers are selling their shares to my father and so 4 daughters are also eligible to sell or claim their shares.

gopi (SW Professional) 15 April 2009

I have Browsed a lot of sites and have to the confirmation that Shri .A V Vishal is right.

My new doubts are how can weprove that we have constructed the house in 1993 in place of completely collapsed house.What kind of proof's does court accept.Please mention a few.

If the remaining 3 sons and daughters come and tell in court that the building was built by us is it sufficient.My father has also not taken any Municipality approval plan at that time

My secound doubt is if my uncle seeks injunction against continuation of the work is there any way to prevent him from continuation of work.

Jithendra.H.J (Lawyer) 15 April 2009

a coparcener cannot seek injunction against the other coparcener. he is not in possession, it is the plus point for you

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Y V Vishweshwar Rao (Advocate ) 15 April 2009

Mr Gopi ! my view on your case fats is !

The Proeprty is Self acquired proerty of father - not copacenary proerty - if it is coparcenary proerty property -Sec 6 is applicable

The Self acquired proerty of father ( Sec 8 Genral Succession to proerty of a male Hindu died intestate )

The Sec 23 appears to be omiited by Amendment Act ( act No;- 39 of 2005 )

The same may be applied -

My view is on the basis of that the property is Self Acquired proerty as admitted by both parties to the litigation

with regard

gopi (SW Professional) 16 April 2009

How tough is it to prove that the building was constructedby my father in 1993 and my uncle has no share in the building valuation.What are admissible proofs in the court to prove this.