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Coparcenor

(Querist) 04 April 2020 This query is : Resolved 
Sir

Some joint family property come to the share of father revenue record's transferred in his name. There is apprehension that my father can sell that without our knowledge, therefore, I wanted update RTC in joint name of my father and me, how I can do that. What is the procedure to enter joint katha


Thanks
Santosh
P. Venu (Expert) 04 April 2020
How it has come to your father's share - through a settlement or partition deed duly executed and registered?

Any how, a mere entry in the revenue records do not create title to the property.
raghavendra (Querist) 04 April 2020
It's ancestors property he has title and I also having title in that property. Since RTC transferred on the basis of unregistered partition deed my father name only reflected. Now without executing the partying deed I want have joint name in RTC.
P. Venu (Expert) 04 April 2020
The best option is to execute the partition deed and then apply for carrying out the mutation.
Rajendra K Goyal (Expert) 04 April 2020
How it was joint family property?
Whether it was Hindu Undivided Property? or
Whether partial division of HUF has happened?.

Under Hindu Law, partial partition is possible, however, tax authorities does not recognize it.

It is advisable to go for a registered partition deed,
J K Agrawal (Expert) 04 April 2020
I suppose that property belongs to your fore fathers, You are Hindu. File a declaration as well as partition suit before the civil court or revenue authority as per your property governing law.
raghavendra (Querist) 04 April 2020
This is ancestral property, entire land stood in name of my uncle (my father elder brother) recently property divided as per unregistered deed as per unregistered deed MR effected in my father name.

Since it's ancestral property being a son will have right. Hence, I want to enter joint katha now

Later we will enter partition deed.

Now being son can ask tehashildar to enter my name along with my father
kavksatyanarayana (Expert) 04 April 2020
As per me, the ancestral property was divided between your father and his brothers through the unregistered deed. so the ancestral property got divided, you have no right over the property to enter joint katha.
raghavendra (Querist) 04 April 2020
Than what is my right in ancestors property being grandson,can my father sell that without my consent
K Rajasekharan (Expert) 04 April 2020
Once a coparcenary property stands divided between the co- sharers, it ceases to retain the character of the ancestral property and then onwards it becomes something equivalent to individual property.

If your father and his elder brother divided the ancestral property among them and retained each ones share, then your father’s share is not ancestral property and you have no right in the property, if what I understand from your description is right.
raghavendra (Querist) 05 April 2020
Its ancestral property divided among father and his brothers and accordingly revenue record's transferred

Being grandson with in 3 generation I am entitled equally as my father right. Now my father only become party in partition deed he is only kartha of joint family property

Now I want to stop my father to sell these property without my consent and time being cannot execute partition also, suggest me
Raj Kumar Makkad (Expert) 05 April 2020
As per facts of the case, the partition is not registered one and so the name of your father has also been got entered in the revenue record as successor to your grand=father, since deceased.

Even if the facts are same as anticipated or understood by me on the basis of your posted facts in installments, I am of the firm opinion that you have got no right to refuse your father to sell the said property for the benefit of the family. It is very difficult to prove that there was no legal necessity with the coparcener before selling the said property.

So far your right is concerned, certainly the same is there but the same cannot be got divided during the life-time of your father.

If you want some share then your father can relinquish his share by way of a registered-deed but in that event also, your father need not to get to get your consent before selling his share.

Title-holder is free to sell his share without obtaining consent of any other person.
P. Venu (Expert) 05 April 2020
The partition has not been registered, but only that entries have been made in the revenue records in favour your father in respect of the property that belongs to his branch of the family. In my understanding, such an arrangement does not divest the property of its ancestral character and render it the self-acquired property of the father. As such you have the subsisting right and interest in the property which could be asserted through a suit for partition, if necessary and so advised.
Rajendra K Goyal (Expert) 05 April 2020
Property has come in the name of your father through partition, partition is valid till decided otherwise by the court. You have no right on the property during lifetime of your father.

He can gift you a part or in full of it.
Dr J C Vashista (Expert) 06 April 2020
Prima facie the ancestral property has been partitioned among brothers by meets and bounds by way of unregistered partition deed and mutation records amended accordingly in favour of your father for his share???
Your father has the title but it does not change character from ancestral to self-acquired. Therefore, if he (your father) intends to sell entire property he is not entitled.
Dr J C Vashista (Expert) 06 April 2020
It is better to consult a local prudent lawyer for better appreciation of facts/ documents, professional guidance and necessary proceeding.
P. Venu (Expert) 06 April 2020
With due respect to Learned Expert it is stated that the facts posted do not suggest that the property has been partitioned by metes and bounds in as much as the the stated unregistered partition (or, rather an arrangement) did not involve all the co-parceners, but only the father and his brothers. As such, as rightly, suggested by him, the severed portions continued to be ancestral with each of the brothers being the Karta.
raghavendra (Querist) 06 April 2020
Yes sir, can I ask revenue authority to enter all legal heirs name in RTC on the ground of that each brother are kartha
P. Venu (Expert) 06 April 2020
As already suggested, the option that the law suggests is to seek partition, if necessary, by filing a suit.
J K Agrawal (Expert) 06 April 2020
Thanks to all learned friends to discuss this hot issue.

So many good answers are there but I most respectfully disagree with some views, expressed here by the Experts.
Rajshekharan Sir said that 'after partition, the property becomes individual self acquired' Yes, I agree but it is not applicable to HUF Coparcenary property unless 'all the coparcenars' get their share. In present case the querist is mamber of HUF but getting no share individually so there is no partition as assumed by Rajshekharan sir. as such this rule not applicable here. In logical terms there is partition between some HUF and HUF and not among all the coparceners.

Resp Makkad Sahib is right only in case the party is governed by Daibhag System of Hindus. We all other pertain that the Querist is governed by Mitakshra School. It is right that in Dayabhaga School the son get no right in property until death of father but not so in Mitakshra School.

Resp Venu Sahib given proper advise as far as i think but the registration of partition deed or non registration thereof is not a question here, it is only a question that will come up when evidence is produced in court and parties challenge the partition. The partition itself if not as per law, the registration or non registration does not make any difference.

The fact of partition by meets and bounds or symbolic partition on papers only, also does not make any difference unless there arise a question of adverse possession or boundary dispute. The coparcener has right by birth and partition by father of others, not valid if right of querist ousted. .

As far as the question arises that father of querist got partitioned the property, it does not make him absolute owner of property and he is only in position of Karta of HUF consisting Father of querist and all his brother (and now sisters.also).
raghavendra (Querist) 06 April 2020
Thank you so much for all your valuable advice

T. Kalaiselvan, Advocate (Expert) 06 April 2020
It is pertinent to understand the concept of “ancestral property" under the Hindu laws. Whenever an ancestor inherits any property from any of his paternal ancestors up to three generations above him, then his legal heirs up to three generations below him would get an equal right as coparceners in that property.
T. Kalaiselvan, Advocate (Expert) 06 April 2020
It is pertinent to understand the concept of “ancestral property" under the Hindu laws. Generally, it would connote that whenever an ancestor inherits any property from any of his paternal ancestors up to three generations above him, then his legal heirs up to three generations below him would get an equal right as coparceners in that property. Such a property should not have been divided by the members of the joint Hindu family. When a division or partition happens in a joint Hindu family, it becomes a self-acquired property in the hands of a family member who has received it. After the codification of the Hindu Succession Act, 1956 and post the amendment in 2005, all legal heirs, i.e., daughters are also entitled to an equal share in the joint Hindu family property.
T. Kalaiselvan, Advocate (Expert) 06 April 2020
However, if there is no partition or division and it still remains an ancestral property, probably you may become entitled to claim your rights, which shall be limited to what your father is entitled to in the ancestral property.
T. Kalaiselvan, Advocate (Expert) 06 April 2020
First of all ascertain the nature of property.
If it was the property left behind by your grandfather (whether it was his self acquired or he inherited as his share), then it cannot be considered as ancestral property, hence you have no rights in the share of property your father got through a partition (whether by a registered or an unregistered partition deed) along with his brother.
Therefore your case to stop him from selling his own and absolute property may not be maintainable.
raghavendra (Querist) 06 April 2020
This is ancestral property but stood in the name of my father elder brother, recently land divided by 4 part and podi done one share allotted to my father name.

This may be consider as ancestral property or joint family property and I am with in 3 generation. Hence, I want to have joint Katha along with my father

Since it's family matter I don't want to file partition suit etc.
raghavendra (Querist) 06 April 2020
This is ancestral property but stood in the name of my father elder brother, recently land divided by 4 part and podi done one share allotted to my father name.

This may be consider as ancestral property or joint family property and I am with in 3 generation. Hence, I want to have joint Katha along with my father

Since it's family matter I don't want to file partition suit etc.
raghavendra (Querist) 06 April 2020
This is ancestral property but stood in the name of my father elder brother, recently land divided by 4 part and podi done one share allotted to my father name.

This may be consider as ancestral property or joint family property and I am with in 3 generation. Hence, I want to have joint Katha along with my father

Since it's family matter I don't want to file partition suit etc.
raghavendra (Querist) 06 April 2020
This is ancestral property but stood in the name of my father elder brother, recently land divided by 4 part and podi done one share allotted to my father name.

This may be consider as ancestral property or joint family property and I am with in 3 generation. Hence, I want to have joint Katha along with my father

Since it's family matter I don't want to file partition suit etc.


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