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Partion from karta

(Querist) 18 June 2011 This query is : Resolved 
My grandfather bought a residentail property in delhi. he made the property an HUF. He died in 1980 and my grandmother in 1991 witout leaving any will. They have 1 son and 3 daughters, now obviously the only son becomes the karta, can the daughters ask for partion from the karta, please explain.

PALNITKAR V.V. (Expert) 18 June 2011
In view of the amendment in Hindu Succession Act the daughters have become coparcenrs and hence claim partition.
A V Vishal (Expert) 18 June 2011
Palnitkar sir, but there is a non obstanate clause u/s.6 which reads that the amendment will not affect or invalidate any disposition including alienation or partition prior to 20-12-2004. Since the son is already the karta of his late father's HUF and the father's HUF doesnot exist any more, Do you think will the daughters have right to claim the property Sir?
A V Vishal (Expert) 18 June 2011
Sir Plz refer this judgement more particularly the Para 8
sandeep kumar (Querist) 18 June 2011
Thankyou Mr. Vishal, also this is a self acquired proeprty of my grandfather and he died way before the amendment of 2005, will this also go in our favour.

Please advise
PALNITKAR V.V. (Expert) 19 June 2011
With due respect, Dear Mr. Vishal, I take privilege to differ. The author does not state that there was partition before 2005. What is stated that the son became Karta of the family. It implies that the family was joint otherwise, there was no occasion to have karta in the family. apart from that merely because the son became karta, it does not mean that there was partition. The author himself states that the grandfather made the property as HUF. Therefore, on death of the grand parents their children being members of the joint family were entitled to succeed to the property of their parents. Had there been partition, daughters would have got their share as per old law. There was no partition upto 2005. Hence, the daughters become coparceners. I have gone through the ruling. In the said ruling a suit for partition was already filed before 2005 and as per law filing of suit for partition amounts to severance of joint status. Therefore, unless there is evidence to show that there was partition prior to 2005, the daughters can not be prevented from claiming partition in house.
sandeep kumar (Querist) 19 June 2011
Mr. Palnitkar thanks for the suggesstion. Also could pleas throw some light on this also. The case which mr. vishal has discussed also says( para8)

'SUB SECTION 3 PROVIDES THAT IF A HINDU DIES AFTER THE COMMENCEMENT OF HINDU SUCCESSION ACT 2005 ( AMENDMENT), HIS INTREST IN THE PROPERTY OF A JOINT HINDU FAMILY SHALL DEVOLVE BY TESTAMENTARY OR INTESTATE SUCCESSION. THUS THE BASIC CONDITION OF THE APPLICATION OF ACT IS THAT COPARCENARY MUST BE IN EXISTANCE ON THE DAY WHEN AMENDMENT ACT CAME IN TO FORCE.

Please throw some light on this, will this be applicable in our case to as my grandfather also died way before the amendment of 2005
A V Vishal (Expert) 19 June 2011
I have already aired my view. I'm awaiting for Mr Palnitkar's view on the matter. Mr Palnitkar is a very senior advocate of this forum and also a retired judicial member. Plz await for his resposnse.
sandeep kumar (Querist) 19 June 2011
Mr. Palnitkar has already shared his views mr. vishal please check
PALNITKAR V.V. (Expert) 19 June 2011
Yes Dear Mr. Sandip, I had gone through that. According to my interpretation of that clause, devolution of property by survivorship has been abolished after commencement of amendment of 2005 and it is provided that interest of a deceased in the joint family property or the coparcenery property shall devolve only by testamentary or non testamentary succession . Sub clauses a to c of sub section 3 make the position more clear since the children of predeceased son etc are also made entitled to share in the property. Provision of sub section 3 has to read and interpreted as a whole and not by excluding the sub clauses. Any doubts are welcome. I am also open to corrections. I would welcome frank discussion on this aspect.
R.Ramachandran (Expert) 19 June 2011
Can you please indicate whether the 3 daughters are married, and if so, whether they were married prior to after the death of their father?
sandeep kumar (Querist) 19 June 2011
MR. Ramchandran Sir, All daughters were married before my grandfathers death in around 1960s. One of them who stays in the property became a widow in around 1976.
sandeep kumar (Querist) 19 June 2011
Mr. Palnitkar sir, here is what i understand

3) WHERE A HINDU DIES AFTER THE COMMENCEMENT of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased so or a pre-deceased daughter, as the case may be.

As we can clearly see in caps it is written in section 3 that it is only applicable wherin a hindu dies after the commencement of the act then only the section and the subclauses are valid.

Please comment
R.Ramachandran (Expert) 19 June 2011
In the facts situation given by you:

1. Upon the death of your grand father in the year 1980, by operation of Section 6 of the Hindu Succession Act, 1956, there will be notional partition.

2. In the notional partition, the property ought to have been divided as follows:
(a) 1/3rd share for grand father
(b) 1/3rd share for grand mother
(c) 1/3rd share for the son (i.e. your father)

3. Since your grand father and grand mother died without leaving any WILL, their respective shares i.e. 1/3rd + 1/3rd = 2/3rd has to go by way of equal inheritance between your father and his three sisters. That means, each one of them would have got: 2/3 x 1/4 = 2/12 = 1/6th share.

4. Thus, your father's share is 1/3rd + 1/6th = 3/6 = 1/2.

5. The combined share of all your three aunt's would be 1/6 + 1/6 + 1/6 = 3/6 = 1/2.

6. Thus while your father is entitled to 1/2 share, the remaining 1/2 share will go to all your three aunts.

7. At best, your aunt who is staying in first floor is entitled only to 1/3rd share in the property.

8. Your father became Kartha only to his family consisting of himself, his wife and his children and not to the family of his father! In such an HUF, your aunt is a stranger.

9. In this case, the provisions of 2005 Amendment does not come into play.
sandeep kumar (Querist) 19 June 2011
Thanks a lot Mr. ramchandran, that helped a lot. But in this case CAN THEY DEMAND PART ION AS THE ONE LIVING WITH US HAVE
R.Ramachandran (Expert) 19 June 2011
The restriction on demanding partition of the dwelling house has now been removed. They can definitely ask for partition of the house. Already one of your sister is on the first floor. If there are other areas others can as well seek such portions for them. Otherwise, the entire property has to be valued, and the money value of their share has to be given to each one of them. This value will be the current market value of the property.
PALNITKAR V.V. (Expert) 19 June 2011
I agree with Mr. Ramachandran. I have also made clear that the daughters would get share from the share of their father as per old law. Mr. Ramachandran has elaborated it with the help of illustration. I think the position is quite clear now.
J K Agrawal (Expert) 19 June 2011
Thanks to all
sandeep kumar (Querist) 20 June 2011
MR. Ramchandran, 1 more question sir, what about my mother, my brother and myself, would we get the share from my father share only or we also have right to get a share from my grandmothers share. We cant get from grandfather as when he died my father was unmarried.

R.Ramachandran (Expert) 20 June 2011
Once your father gets his share in the partition, only from out of that share all his family members (i.e. his wife, son(s) and daughter(s)) will get their respective shares.


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