can daughter born in 1958 in karnataka getshare in ancestral property
Querist :
Anonymous
(Querist) 17 November 2010
This query is : Resolved
sir,
i latha 52 yrs born in 1958 karnataka can get shareshare in my grandfather property because after my fathr death in 1975,my father did not divide the propery ,after his death , my brothers divided the property among them selves in 1985 with out mentioning the sisters names,one brother made khatha to his name and one brother did not make khatha to his name till now so that I myself or my son claim a suit against my brother and my sister born in 1956 is died and her children can alo file a suit against my brothers.
i want to know how hindu seccion law works in karnataka.
R.Ramachandran
(Expert) 17 November 2010
According to unamended Section 6 Hindu Succession Act, 1956,
"When a male hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.
PROVIDED that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship."
In your case, your father was having interest in the coparcenary property of your grand father. He died intestate (i.e. without giving any WILL or gift). At the time of his death he had left behind female relatives who are his Class-I heirs. (i.e. you and your sister or your mother).
Therefore as per proviso under Section 6 of the Hindu Succession Act, 1956, the coparcenary property in question CANNOT GO BY SURVIVORSHIP AMONGST THE male co-parcenars alone, BUT has to go by succession to the legal heirs.
Therefore you yourself (not your son) and the son/daughter of your pre-deceased sister are entitled to claim equal share in the property.
Querist :
Anonymous
(Querist) 17 November 2010
ramachandran sir ,
but my father made a will that the property should be divided by my brothers only and not for females after his death,the property was not divided when he was alive ,the property was divided by my brothers after my fathers death.
the property is not self aquired by my father it is my grandfathers property.
my father has no right to make a will for my grand fathers property.
Parthasarathi Loganathan
(Expert) 17 November 2010
Nice interpretation by Mr.Ramu. However a detailed article on Discrimination in Inheritence Law for daughhters, Sons and Widows by Dr. Sivaramayya, a retired professor of law, Delhi University, is available in the following link for the benefit of all:
http://www.payer.de/dharmashastra/dharmash09b.htm
R.Ramachandran
(Expert) 17 November 2010
If your father had made a WILL, then the property will go according to the contents in the WILL.
This is made very clear in the Act:
"PROVIDED that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession."
In this case, there is testamentary (i.e. WILL in this case) disposition of the property. Therefore, no one other than whoever have been mentioned in the WILL can claim any share in the said property. YES I am quite aware that it is not your father's self acquired property, but his ancestral property.
Once there is a WILL in their favour, the brothers can get the partition done at their convenience. In fact since the WILL would take effect only after the death of your father, there is nothing wrong if your brothers had divided the property amongst themselves after the death of your father.
R.Ramachandran
(Expert) 17 November 2010
Dear Mr. Partha,
Thanks. I have gone through the Article. But it is more in the nature of what is desireable to avoid discrimination amongst members of a family, and how the law should be suitably amended, than an interpretation of the existing law.
Querist :
Anonymous
(Querist) 17 November 2010
ramachandran sir,
so that i have no rights to ask for partition of share with my brothers,
so pls tell me,
so that i can file a suit that (WILL)done my father is totally not legal because he has no rights to do (will) of my grand fathers property and ask for share by filing a suit in court on my brothers..
R.Ramachandran
(Expert) 17 November 2010
I have clearly mentioned that in the fact situation mentioned by you, you have no case and you cannot question your brothers nor can you ask for any share in the property.
Even though the law is not on your side, you still want to file a suit against your brothers.
IF YOU ARE ADAMANT, NO ONE CAN STOP YOU. Go ahead. Spend some more money from your pocket. Best of lucks.
adv. rajeev ( rajoo )
(Expert) 17 November 2010
Refer the judgement in ILR 2009 KAR 3699. This judgement is very clear.
s.subramanian
(Expert) 17 November 2010
You can file a suit for partition. The will executed by your father is not valid since the property is co-parcenary property. since the partition was made subsequent to your father's demise,you are entitled to a share in those properties as the daughter of the deceased since you are class 1 heir as per Hindu Succession Act,1956.
R.Ramachandran
(Expert) 17 November 2010
Dear Mr. Subramanian, I am afraid that you are not correct, for the following reasons. Please feel free to correct me if I am wrong.
According to Section 6 of the HSA, 1956 as it stood in the year 1975 (i.e. when the father of the querist died), only the male members of the joint family are the co-parcenars. [Assuming that the property is situate in Karnataka, even the HS (Karnataka Amendment) Act, 1994 which granted equal co-parcenary rights to daughters also, came into effect only w.e.f. 30.7.1994 and as such only male members by birth are entitled to be the co-parcenars to the exclusion of their sisters.]
In the instant case therefore only three male members i.e. father and two brothers of the querist, are the co-parcenars having interest in the ancestral property.
On the death of the father, the coparcenary property would be deemed to have been partitioned. i.e. 1/3rd each.
Both the brothers would have in any case got 1/3rd part each as their share in the property cannot be denied.
Now the question remains as to the 1/3rd share which fell to the part of the deceased father.
In a normal circumstance, i.e. but for the enactment of HSA 1956, the said portion also would have gone only to the share of the two surviving sons. But, in view of HSA 1956, according to Section 6, the share of the deceased male (father in this case) if he has left any surviving female Class-I heirs [yes they are available in this case being his daughters], will go either in terms of the Testamentary disposition or intestate succession.
In this case, since the father had left a testamentary disposition [will] in favour of his two sons to the exclusion of the daughters, according to Proviso to Section 6 of HSA, 1956, the co-parcenary property of the father shall go according to the WILL and the daughters [the querist] shall not get any share.
Awaiting your critical view.
Debasish Hota
(Expert) 18 November 2010
Agreed with the openion of Mr.Ramachandran . Eagerly waiting for the critical view of Mr. Subramanian. I would like to add that the author will not able to succeed unless the WILL is declared void.
R.Ramachandran
(Expert) 19 November 2010
Dear Mr. Subramanian,
We are waiting for your critical review.
