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Rakesh (X)     03 December 2013

Applicability or not of hsa 2005

Dear Sir / Madam ,

My grand father had agricultural land in Rajasthan . My Grandfather and Grandmother Died before 1965 , and this land transfer in name of my father and uncle in 1969 in revenue record ( i.e. in khata , khatony etc .) . my father had two sister . 

All person i.e. my father  , uncle ( Died )  , and two sister ( Died .) Born before 1950 .

My fathers both sister died .

One in before 2005 and second after 2005.

now in 2012 sons of my fathers sister claim for partition in above land.

My question :-1. weather son of my fathers sister can claim  share in land  and if yes than howmuch ? 

                         2. any case law apply in this case than please send me on poonamsaini1988@rediffmail.com                                               

                          

 

 

 

 

 

 



Learning

 4 Replies

adv.raghavan (Advocate,9444674980)     03 December 2013

If your grand father and mother had left without any WILL , yes they can claim share in that.

Rakesh (X)     04 December 2013

Dear Sir ,

One of my freind send me this case law , please see this and reply me with your valuable suggestion .

and as per your point of view they can claim but as per this case law they can't ..........please refer it and give your suggetion

 

Delhi High Court
Delhi High Court
Smt. Mukesh And Ors. vs Shri Bharat Singh And Ors. on 18 February, 2008
Equivalent citations: 149 (2008) DLT 114
Author: P Nandrajog
Bench: P Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. Appellants had filed a suit for partition and injunction alleging that they were the daughters of late Shri
Khem Chand. They imp leaded their 3 brothers and their sister as defendants 1, 2, 3 and 4 respectively. It was
stated in the plaint that the suit land measuring 4.5 kila in Khata No. 88/54 in the revenue estate of Village
Mundla Khurd, Tehsil Najafgadh, Delhi was owned by their father and on his death the sons and the daughters
each acquired 1/6th share in the suit land. On said basis, alleging that no partition had been effected, partition
was prayed for.
2. In the written statement filed by the defendants 1, 2 and 3 i.e. the brothers, it was stated that Khem Chand
expired on 10.6.1993 and as per the Delhi Land Reforms Act, 1954 succession to the holding being governed
under Section 50 thereof, as sons, they alone were entitled to succeed to the holding since their sisters were
married. Thus, entitlement of the plaintiffs was denied. It was stated that on death of the father the suit lands
were mutated in the names of the 3 sons. It was alleged that the mutation entry had attained finality. Lastly, it
was urged that right, if any, was to seek partition of the suit land before the revenue authorities. It was pleaded
that by virtue of Section 185 of the Delhi Land Reforms Act, 1954 the civil court had no jurisdiction to
entertain the suit for the reason under Section 55 of the Delhi Land Reforms Act a Bhumidar was entitled to
sue for partition and as per entry at serial No. 11 of the 1st Schedule to the Act the court of Revenue Assistant
was the court of competent jurisdiction.
3. In replication filed by the appellants it was pleaded that by virtue of the Hindu Succession (Amendment)
Act, 2005, since Sub-section 2 to Section 4 of the Hindu Succession Act, 1956 was deleted, succession to the
holding of late Khem Chand had to be as per the Hindu Succession Act, 1956. It was further stated that the
provisions of the Delhi Land Reforms Act do not apply to the suit land.
4. By and under the impugned order learned Trial Judge has found a prima facie case against the plaintiffs and
in favor of defendants No. 1 to 3 on account of the fact it has been held that the succession opened when
Khem Chand died in the year 1993 and as per law then applicable succession was in favor of the sons.
Holding no prima facie case in favor of the appellants on the maintainability of the suit, injunction has been
declined.
5. Section 4 of the Hindu Succession Act, 1956 as originally enacted read as under:
4. Over-riding effect of Act.-(1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force
immediately before the commencement of this Act shall cease to have effect with respect to any matter for
which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in
so far as it is inconsistent with any of the provisions contained in this Act.
2. For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect
the provision of any law for the time being in force providing for the prevention of fragmentation of
Smt. Mukesh And Ors. vs Shri Bharat Singh And Ors. on 18 February, 2008
Indian Kanoon - https://indiankanoon.org/doc/1257572/ 1

adv.raghavan (Advocate,9444674980)     04 December 2013

the case u r referring was decided based on Delhi Land reforms act, and your case is different, u said property is in rajasthan, i do not think there is any act like Delhi land reforms act prevailing in rajasthan. Correct me if i am wrong, your grand father properties were not partitioned till now, but your father and uncle are enjoying it , i do not know how they got changed revenue records in their names, but still your father sisters and their legal heir do have legitimate right to claim for a share in grand father properties.

Rakesh (X)     04 December 2013

Dear Sir, 

thanks for your valuable feed back ... but as per discussion with sh. girish ahuja sir ... auther of many law books..

Yes property situated in Kota ( Rajasthan) ....  some things confused me ....

1st my grand fathers death before 1965.

2nd date of birh of my fathers sister before 1950. i.e. before the act applicability.

3rd property  transfered in name of my uncle and father before 1970 in revenue record.

and as per this case law HSA 2005 not apply.... if  grand fathers death before 2005. than how they claim...

and last if HSA 2005 not apply than act 1956 also not apply because birth date before 1950 and this is an agricultural land.

and date of marrige of my fathers sister also before 1950.

please sir refer this and reply...

 

 


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