Property divison
preeti
(Querist) 21 April 2012
This query is : Resolved
i am 35 years old. my brother is 38 year old.i lives in indore (mp). my father died in 1978. my mother died in 2008.
my father had 100 acre ancestral agricultural land .we both brother and sister have name on khasra B1 & P2 form, and on revenue record from many years. there was no partion before between us.and my father got land from his father
My brother says my share is only 25% in land. so i should take it without filing a suit in civil court, as its a long and costly process. he says he is ready to give any part of land which i wish but not more than 25%
what should i do? is it true that my share is only 25%. i have heard that women law is passed some years ago, so i am totally confused.
please help me.
Adv Archana Deshmukh
(Expert) 21 April 2012
Both of you have equal shares in the property i.e. your share is 50%.
Shonee Kapoor
(Expert) 22 April 2012
Both of you have equal share in the property.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
SAINATH DEVALLA
(Expert) 22 April 2012
Dear Preetiji,
As per the hindu succession act 1956 and the HSA (amendment) act 2005,you rightly have a 50% share in the entire property,left by your parents.If your brother tries to play mischief,he can be dragged to the court.
R.K Nanda
(Expert) 22 April 2012
Ur share is 50% in said land.
preeti
(Querist) 22 April 2012
thanks to all expert, from above responses ,i come to conclusion that i must file a suit in civil court, for partition and equal share in land
M V Gupta
(Expert) 22 April 2012
Your brother is not correct. When your father died in 1978, your self, your brother and your mother inherited 1/3 share each. When your mother died in 2008 her share again devolved on you and your brother in equal share i.e., 1/3 x 1/2=1/6 each. thus your shares in 2008 are 1/3+1/6=3/6=1/2 each. Hence as advised by experts above you are entitled to 1/2 of the 100 acres of the ancestral property. Pl see proviso to sec. 6 and sec. 8 of the Hindu succession act, 1956.
Anirudh
(Expert) 22 April 2012
In fact, when your father died in the year 1978, the property will get partitioned automatically by operation of Section 6 of the Hindu Succession Act, 1956.
Accordingly, the property will get divided into 4 parts equally. 1/4 each to your deceased father, your mother, you and your brother.
The 1/4th share falling to your father will go by way of inheritance (since he does not appear to have left any WILL) equally amongst all his legal heirs - i.e. you, your brother, your mother and your sister. That is each one of you will get 1/16th.
Upon the death of your mother, her share (i.e. 1/4th+1/16th = 5/16th) will again go by way of inheritance (if your mother had not left any WILL) equally between you, your brother and your sister. i.e. 5/48th each.
Ultimately you will get 1/4+1/16+5/16=5/12, your brother 5/12 and your sister 2/12.
Anirudh
(Expert) 22 April 2012
Wait a minute.
I thought you are two brothers and you have one sister.
But on proper reading of your post, it seems that you are one brother and one sister.
In that case, the property will get divided as under:
Upon death of your father: 1/3rd each to your father, mother and your brother.
The 1/3rd share of your father will go by way of inheritance equally amongst your mother, your brother and you i.e. 1/9th each.
Then upon death of your mother her total share (1/3 + 1/9 i.e. 4/9) will go equally between your brother and you i.e. 4/18 each.
Ultimately, your brother will get 1/3+1/9+4/18 = 12/18 = 2/3.
You will get 1/9+4/18= 6/18=1/3.
Thus, your brother will get 2/3 and you will get 1/3.
preeti
(Querist) 22 April 2012
anirudh sir, i didnt got ur point all experts says i must get 50% but u says i could get 33%. my father has left no such will. why i cant get 50%. it means there is discrimination among son and daughter in law.
Anirudh
(Expert) 23 April 2012
Dear Preeti,
I have given my answer on the basis of the legal position.
I have explained the calculation to you.
None of the experts who earlier said that you are entitled to 50% have explained how they arrived at the figure.
They have to review their answers and come back to you.
Yes, there was discrimination between son and daughter at the relevant point of time. As such, you will get only 33% and not 50%.
prabhakar singh
(Expert) 23 April 2012
Dear shri Anirudh !
I not only praise but also share your view that since property was inherited by father from his father ,a notional partition by fiction of law has to be assumed on his death with his son who formed a coparcenary with his father, as the law then was, daughters were not recognized as coparcener.
But fortunately for daughters, as questioner is,a judgement was pronounced by Apex Court on 12 October, 2011 by Bench: R.M. Lodha, Jagdish Singh Khehar in Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr.,their lord ships were pleased to hold
that:
"14. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.
15. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that `partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non- applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed.
16. The legal position is settled that partition of a Joint Hindu family can be effected by various modes, inter-alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court."
Since this judgement, unless changed has binding effect on all of us, i opined she,the questioner, has 50%share as there has been no registered or court's final decree of partition before the cut of date being 20/12/2004.Their Lordships treated it beneficial legislation and ignored the factum of notional partition envisaged .But we are bound by decision though I respectfully disagree with interpretation put forward in this citation.
The whole text of the judgement is available on : http://www.indiankanoon.org/doc/1103994/
And this matter has been discussed in past
by experts in which Mr.Ramachandran,a respectable name in succession law also participated and he as well as despite having similar view as is yours,concluded in favor of daughter in view of this judgement. Mr.Ramachandran has also posted a separate article here on this topic.
Anirudh
(Expert) 23 April 2012
Dear Mr. Prabhakarji,
I also hold Mr. Ramachandran in high regard as far as the succession law is concerned.
I also remember the Article by Mr. Ramachandran.
In his well written Article Mr. Ramachandran has very categorically stated as to how the decision in Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr. is erroneous.
Keeping in view the fact that the case related to Andhra Pradesh property, Mr. Ramachandran, if I remember correctly, only said that while the reasoning of the SC decision is wrong, the outcome would not be different especially in view of the Andhra Pradesh (HSA Amendment) Act, which had granted the equal status to daughters, and the partition suit having been instituted only after the coming into force of the AP Amendment Act.
But for the contextual situation prevailing in Ganduri's case, Mr. Ramachandran was also critical of the reasoning in SC's decision and was of the strong view that the decision is a fit one for Review.
Therefore, in my humble view, ultimately the querist Preeti will only get 33%. But in the meanwhile she can rely upon (though temporarily) for sometime the SC decision to claim 50% share. But clearly, that is not the law. Any lawyer with complete know of the law will be able to successfully point out the flaw in the SC decision, whenever occasion arises before the SC and get the decision in Ganduri's case declared as 'per incurium'. That time is yet to come.
prabhakar singh
(Expert) 23 April 2012
That is right Mr. Anirudh.I agree to you 100%.
