Father's property
skanda vallishayee
(Querist) 27 October 2011
This query is : Resolved
myself(geetha) and my sister filed a suit on our brothers for partion of our fathers property, where our father has not made any will, the following events took place after that
We failed for partition and separate possession in in 1994.
learned principle civil judge of shimoga (karnataka) passed judgement and preliminary decree passed at 12.12.03 and we have been allotted 1/15 th share.
in the view of the amendment to hindu succession act by the parliament of india by virtue of C.A 39/2005, the petitioner is also entitled for an equal share with that of male heirs under section 6 of the hindu succession act
since the decree passed on 12.12.2003 is preliminary one and final decree proceedings is yet to be filed and in the view of hindu succession act (amendment) 2005 has been amended, the
(we) petitioner filed an application under section 151 r/w section 152 of cpc with a prayer to modify the judgements decree to grant equal share instead of 1/15th share
the learned trial judge dismissed the application at 5.6.2008 stating the application filed by the plaintiff has barred by the limitation
As such a writ petition MO. 10926 of 2008 was moved in high court against the above decision.
the honorable high court is of the opinion that we have to challenge the preliminary decree itself seeking the modification of share instead of filing an application for rectification of shares with section 151 & 152 of cpc.
in the view of the above a fresh application was moved in the court at shimoga ( district of karnataka ), court has fined Rs. 500 for delay in admitting case and the case has been filed once again, its is pending for argument
in the above circumstances we would like to know
possible outcome of the decision
my date of birth: 1952
Srajadvo460
(Expert) 27 October 2011
In my view you should file application to amend the prayer in the suit and seek your relief, now you have filed application to amend the judgement which is not possible since you have filed suit seeking 1/15th share only.
skanda vallishayee
(Querist) 27 October 2011
but High court is of the opinion that we have to challenge the preliminary decree itself seeking the modification of shares instead of filing an application for rectification of shares with sec 151 and 152 of cpc,
so in the view of above a fresh application was moved in the court at shimoga.
please help in this
Raj Kumar Makkad
(Expert) 27 October 2011
Sraj & Sheik! How can you say that petitioners/questist had mentioned to grant only 1/15th share out of properties left by their father without going through petition itself?
Geetha! If you had sought only partition and possession without specifically mentioning your share then you have nothing to do but if demand was only for 1/15 share then move another application seeking amendment.
So far winning percentage is concerned, I think your case is very weak. Amendment of 2005 is with prospective effect and not with retrospective effect. The right accrued on the day of death of your father held prior to 2005 irrespective of fact when do you seek partition.
skanda vallishayee
(Querist) 28 October 2011
actually we have filed a new application for equal share not for 1/15 th of the property,
my questions to your reply are:
1. how does father death impact the judgement when he has not made any will?
2. Till date only preliminary decree has taken place and no one has gone for partition and registration, how does this can retrospective to the 2005 amendment?
3. As far i know preliminary decree can be changed n number of time?
please correct me if i wrong on the above mentioned points.
R.Ramachandran
(Expert) 28 October 2011
Dear Ms. Geetha,
I assume that the property is 'ancestral'.
Now, you have to indicate the following information before I can give an answer to your query.
1. When did your father die?
2. Whether your mother was alive when your father died?
3. Whether your grand mother (father's mother) was alive when your father died?
4. What is the composition of your family (i.e. how many brothers and how many sisters)
5. In which year, each of the sisters got married?
skanda vallishayee
(Querist) 28 October 2011
1. my father died on 1982.
2. yes mother was alive when my father died
3. no my grand mother was not alive.
4. we are 2 brothers and 2 sisters.
5. i got married on 1980 and my sister on 1988
R.Ramachandran
(Expert) 28 October 2011
When your father died in the year 1982, the partition opens up.
At the relevant point of time, the daughters are not coparcenars. The daughters were declared to be equal co-parcenars only subsequently i.e. from 30.7.1994 when the Karnataka Amendment Act (Act 23 of 1994) came into force.
Even the said Karnataka Amendment Act, very specifically provided that "the said amendment shall not appli to a daughter married prior to 30.7.1994; or to a property the partition of which had been effected prior to 30.7.1994.
In your case, both the sisters got married prior to 30.7.1994. Therefore the beneficial provision will not be available to you.
Similarly, by operation of law (the then existing Section 6 of the Hindu Succession Act, 1956) the property stood automtically partitioned immediately on the death of your father in the year 1982. Thus, since the partition had also taken place prior to the coming into force of the Karnataka Amendment, the benefit of the Amendment was not available to the daughters.
As per the law that was existing in the year 1982 only your father and your two brothers were the coparcenars. Therefore, the property stood first partitioned between the three and each one getting 1/3rd share.
Since your father died without leaving a WILL, his 1/3rd share will go by way of inheritance in view of the Proviso to Section 6 of the HSA, 1956, amongst all his legal heirs. The legal heirs are 5 namely, your widowed mother, you two sisters and your two brothers. Therefore, the 1/3rd property will have to be divided into 5, and thus all of you will get 1/15th share each.
In the overall result, each of your brother will get 1/3rd + 1/15th = 2/5th share; while each of you sisters and your mother will get 1/15th share.
When the Karnataka Amendment Act which came into force as early as on 30.7.1994 itself was not available to your case, the question of application of the Hindu Succession (Amendment) Act, 2005 to your case simply cannot arise.
Probably, you are mentioning about the preliminary decree and the changes to the preliminary decree, mainly due to the latest latest decision of the Supreme Court in Ganduri Koteshwaramma and Anr. Vs. Chakiri Yanadi & Anr. (Civil Appeal No. 8538 of 2011) decided on 12.10.2011.
But in my view, the said decision does not appear to be based on any settled legal principles and rather it is contrary to the decisions of the three judge bench of the SC itself on some of the legal principles. Please see the details at http://www.lawyersclubindia.com/articles/Latest-SC-Decision-A-fit-case-for-review-4135.asp.
skanda vallishayee
(Querist) 28 October 2011
so according to you women who are married before to 1994 can't get share in fathers property, irrespective of latest amendments in Hindu succession act 2005.
R.Ramachandran
(Expert) 29 October 2011
That is not the case.
If one has to get the benefit of Amendment Act, 2005 then the following conditions need to be satisfied:
1. The partition of the property should not have taken place prior to coming into force of Amendment Act, 2005.
2. The father of the party should be alive on the day when the Amendment Act, 2005 came into force. If the father had died earlier, then the partition would have automatically taken place due to operation of Section 6 of the unamended Act and because of that the benefit of Amendment Act, 2005 would not be available.
Since you have not satisfied the above two conditions, the benefit of Amendment Act, 2005 is not available to you.
Further, the benefit under even the Karnataka Amendment Act of 1994 was also not available to you for the following reasons.
3. In your case, at least the Karnataka Amendment Act was available which declared the daughters in the family as equal coparcenars.
But there again there were two conditions which the daughter had to satisfy in case she wanted to benefit from the said Act.
(i) the daughter should not have got married prior to the coming into force of the Karnataka Amendment Act. - Here both sisters had got married prior to the year 1994 i.e. before the Karnataka Amendment Act.
(ii) the partition should not have taken place prior to coming into force of the Karnataka Amendment Act. Again here, the partition had taken place in the year 1982 itself when the father died, while the Karnataka Amendment Act came much later only in the year 1994.
