Devolution of HUF 'ancestral property' in Maharashtra.
natasha z
(Querist) 28 February 2011
This query is : Resolved
my question to you is
on the topic of 'ancestral property' and the devolution of the same
under current Hindu Law.
Background of the problem:
There is a Maharashtrian family, living in Maharashtra, with Grandfather G, who has a wife W;
and together they have 2 sons and a daughter, S1, D1, S2. Now S1 has a
son GS1, and D1 has two children, a son, GS2 and daughter GD1. Except
for the daughter and her children, D2, GS2, GD1, everyone else lives
together under the roof of the same dwelling house.
Following is a diagram of the family tree:
G + W
/
S1 - S2 - D1
/ /
GS1 GS2 - GD1
The facts are:
G bought and owned a plot of land P. Then in 2007, G passed
away, is survived by the above mentioned persons.
Now, S1, S2, D1 wish to sell part of he property. However, GS1 does
not want this to happen.
Problem:
1. Basic assumptions-
a) Is this family assumed to be an undivided HUF? Which provision
of the law makes this assumption? What, if any, are the additional
conditions to be fulfilled to qualify as a joint/ undivided HUF?
b) Is plot 'P' considered ancestral property? Does the distinction between Joint family property/ ancestral
property/ and self-acquired property still subsist in the current era?
If so, then what exactly is the difference (beyond their definitions
of course)
2. As far as devolution of property is concerned -
c) Under which law would the devolution of property of the above
mentioned family be governed? Mitakshara customary law or the Hindu
Succession Act, 1956?
d) Thus, does property in the above mentioned case devolve by
survivorship or succession? Who shall be the members of the
coparcenery?
e) What share would W, S1, S2, D1 get? And would GS1, GS2, GD1
have any right/ interest in the above mentioned plot?
3) With regards to rights over the property -
f) Does the property vest solely and completely in W, S1, S2, D1
during their lifetimes? Do they have the absolute right of alienation?
Or do they require the permission/ assent of each coparcener before
any such alienation can be made?
g) If one or more of the survivors mentioned above refuse to give
their ascent to the alienation of (part of) the property, then can
such property be alienated by the ascending parties? If so, does it
result in automatic dissolution of the HUF, with each coparcener
getting his divided share?
h) What right, if any, do the grand children have in the above
mentioned property? Does GS1 have any legitimate right/ say in the
joint family property? If so, then what is the extent and limit of his
right/ interest?
I am rather embarrassed that I do not know the answers to this problem
although I appeared for and passed (with 64%! lol) the Hindu Law
examination in November, 2010. I am confused about whether devolution
of property belonging to this family will be governed by the Hindu
Succession Act or the Mitakshara customary law. Any clarity on this
topic would be most appreciated.
Thank you.
adv.bharat @ PUNE
(Expert) 13 November 2016
Yes it is undivided family.
P plot is self acquired property.
