Sec 28 - hindu adoption & maint. act - effect of transfer of property
Jaya Pathak
(Querist) 27 May 2015
This query is : Resolved
The wordings of the Sec 28 is as below:
Where a dependant has a right to receive maintenance out of an estate, and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee ........
Now my question is:
1) Does right by birth of a minor child in ancestral property fall within the ambit of the above Sec 28? Some of the ancestral properties are commercial and have rental income.
2) The right by birth exists since the day the child was born so any property gratuitously transferred after the child was born can it be brought under this section if the father of the child is not taking care of the minor child and has gifted all his rights in ancestral property to his own real brother and sold some to other cousin brother and didnt take any consideration from the cousin brother?
The opinions of the experts will be highly appreciated.
Thanks
Jaya
Jaya Pathak
(Querist) 28 May 2015
Please note that this is not a academic query.
More info:
Minor child was born in 2002
Disposed property as below:
1) Ancestral property flat gifted by father of this minor child to his real brother in August 2014
2) Share in 1 other flat was gifted by father of this minor child to his cousin brother in Sept 2014
3) Share in 2 other flats was sold by father to his cousin brother in Sept 2014 but all compensation was taken by real brother.
4) The other commercial property which is rented doesnt seem to be disposed off yet b'se we did not find any agreements related to them from online property search but all the rental agreements are made in the name of the real brother since almost 2007 even though the property is ancestral. We found few rental agreements which prove the agreements are made only between the renter and the real brother.
We will appreciate if the experts can also suggest any other remedy besides filing for partition on behalf of the minor.
The father is not taking any responsibility of the minor child.
P. Venu
(Expert) 28 May 2015
The father has to provide maintenance to the minor child. The mother can demand the same under Section 125 CrPC.
It appears that you have not placed all the complete facts in the proper perspective.
Jaya Pathak
(Querist) 28 May 2015
Hello Venu Sir,
Under Sec 125 can a charge be created on the above properties and injunction be placed on whatever property that is not sold yet.
Can the real brother and cousin brother be made party in the suit?
Thanks
Jaya
Devajyoti Barman
(Expert) 28 May 2015
I have no reason to believe that this is not an academic or a professional query.
Dr J C Vashista
(Expert) 30 May 2015
1. Pure academic/professional query, I agree with the observation of experts.
2. The father of minor can not gift the share of minor in his (minor's) inherited property, if gifted, it is invalid and illegal and liable to be set aside.
Answer to question No 1 is affirmative, the minor has a right (charge) in his/her ancestral property, whether it is residential or commercial.
Q 2 has been replied above, the gift of minor's share is illegal and invalid which shall remain intact.
T. Kalaiselvan, Advocate
(Expert) 04 June 2015
Your query is about maintenance as well as protecting the minor child's interest in the ancestral property. They are two different subjects.
If the father has sold the property having a minor interest in it, it is illegal and invalid and not binding on the minor child. As a mother and next friend the child's mother can take up this matter by a partition suit in the family court itself seeking the minor's share in the ancestral property that has been sold by the child's father.
As far as maintenance is concerned she can file it separately, the charge can be created on the father's share of the property and not on the minor child's share.
Jaya Pathak
(Querist) 04 June 2015
Thanks Kalaiselvan Sir....
