partition
mahesan
(Querist) 23 June 2011
This query is : Resolved
father and son partitioned ancestral properties in the year of 2002 without daughter. father executed will infavour of son in the year of 2003. if daughter is entitled any share in the father's 1/2 share . the said will is valid or invalid in respect of share of daughter. Properties situated in Tamil nadu. What relief entitled to the daughter.
Guest
(Expert) 23 June 2011
whether the daughter married or not? in which year married. by assuming married she cannot claim any share in the property.
Advocate. Arunagiri
(Expert) 23 June 2011
As per the 1989 Tamil nadu Amendment Act. The daughter is having the right over the property, which was partitioned 2002.
Kirti Kar Tripathi
(Expert) 24 June 2011
In case, the property was portioned before the enforcement of Hindu Succession(Amendment) Act, 2005(The Hindu Succession (Amendment) Act, 2005 (39 of 2005) comes into force from 9th September, 2005) the partition is valid, As regard to will is concerned after partition,the father became absolute owner of the said property,thus he has full right to dispose of the same as he wish.
R.Ramachandran
(Expert) 24 June 2011
While in the instant case, the father's action in giving the property away by means of WILL is valid, I slightly differ from the views of Mr. Kirtikar in regard to the partitioned property in the hands of the father / son.
If partition takes place, then each of the co-parcenars take the property with the incidence of coparcenary and not as their private properties. It is one thing to say that a son who has taken his share in the coparcenary property cannot claim right in the coparcenary share falling to the share of the father, and it is quite different to say that each of the parties take their share as personal property.
The fact is that, after partition of a coparcenary property, the coparcenar takes his share as a coparcenary property with reference to his male decendant (prior to amendment act) and with reference to daughter also after the 2005 amendment. Therefore, the coparcenary character of the property does not get extinguished.
In the instant case, when the partition took place in the year 2002, the daughter was not a coparcenar. Similarly when the father disposed of his property in the year 2003, the daughter was not a coparcenar. But after HSA amendment Act of 2005, a daughter is a equal coparcenar as a son. In fact even a married daughter is a co-parcener. But the property having been disposed of prior to the Amendment Act, and when there was no coparcenary property on the date when the Amendment Act came into force, the daughter cannot question the action of the father.
If the father had willed the property after the coming to force of the HSA Amendment Act, 2005, then his action can be questioned by the daughter. The property in the hands of the father therefore was not his personal property, but ancestral property.
