Rajeev Vaidya (QA Lead) 24 September 2013

Who can claim the share

My grandfather (mother side) did not make will and died. My Grandmother is still alive and my mother have two brothers and two sisters. My mother is also expired. I have father and two sisters. On behalf of my mother who can claim the share - my father or (my father + my self + my two sisters) ? I am asking this question because my father is not keen in claiming the share, but we, his children want to get a share.

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Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 ) 24 September 2013

Section 6: In order to give rights to daughters, the act introduced a legal fiction of ‘notional partition’ whereby when a male Hindu dies after the commencement of the act, (leaving behind female relatives and without executing a will) his share in the coparcenaryproperty is deemed to have been divided at the time of his death, whether actual partition has taken place or not.

a) This means that if a family consists of a father, mother, two sons and a daughter, the share of the father at the time of death, after notional partition would have been 1/4^th share in ancestral property. This is because each of the sons take one share (ascoparceners), the wife takes one share and the father takes one share as per the rules of old Hindu law (and as per judicial pronouncements which have interpreted and enlarged the scope of the Hindu Succession Act).

b) The share belonging to the father is then again sub - divided equally between all the heirs, i.e., mother, sons and daughter. This 1/4^th share goes out of the co-parcenary property for all times. Thus the sons apart from inheriting 1/4^th share as coparceners in their own right, also inherit a small share in their individual capacity from the divided share of their father. The share inherited by the mother and daughter also goes out of the coparcenary property. There are conflicting judgments on whether the shares of the sons are to be treated as coparcenary properties or not after partition, by the different high courts and supreme court.

Namita Agarwal (---) 24 September 2013

On behalf of your mother only yourself and your two sisters can claim the property which your mother would have inherited had she been alive. The share which your mother would have inherited would be divided into three equal parts. Your father does not have any share in the property of your maternal grandfather.

As per Section 8 of the Hindu Succession Act, the property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in Class I of the Schedule. Heirs in Class I are as follows:

Son, daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter, widow of a pre-deceased son, son of pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son, widow of a pre-deceased son of a pre-deceased son

Rajeev Vaidya (QA Lead) 10 October 2013

Hi Namita,

Thanks for your reply.. I forgot to tell you that my grandfather (motherside) expired in 2001 and still the partition not happen. Please let me know if it impacts on any rights.

Thanks

Rajeev