Application of hindu succession acts
Ajit Shripad Athavale
(Querist) 30 November 2011
This query is : Resolved
Respected Sir,
I would like to seek point wise advice in following case of succession –
There is a coparcenary property in Maharashtra. Father was the main coparcener who died in 1988.
He has Three sons and Two daughters. ( Total Five heirs including Three coparcener sons ). One of the
Daughters is married in 1953-54. and the other before 22June1994.
The ancestral property is in the form of land and there were three separate parts of the land.
Part-1 – 100 Gunthas , Part-2 – 120 Gunthas , Part-3 – 50 Gunthas
In 1993, all the heirs decided to sell Part-1 of the property and after selling the same, the money was distributed equally among all Five heirs. Also at that time, an affidavit was signed in front of the Executive Magistrate of the District in which Two sons and Two daughters agreed in writing to leave their share in part-2 and part-3 of the balance land in favor of the third youngest son. The affidavit was not registered.
Afterwards one of the two sons who signed the said affidavit refused to sign the Vardi notice issued by the Talathi and subsequently the balance part-2 and part-3 of the land was not transferred in the name of the third youngest son,
but as on date the land is in possession with the third youngest son ( from 1976 to 1993 the possession was unofficial
on mutual understanding and after 1993 the possession is official or legal as per the signed affidavit )
One of the daughters died before 2005, and the remaining daughter also died in 2007.
Now in 2011, the third youngest son met the remaining two brothers and requested to settle the matter. Following solution
is proposed by the brothers -
Divide the balance property in four equal parts out of which three equal parts will be taken by three sons
The fourth part shall be divided in five pieces, one piece each shall be taken by three sons and remaining two pieces shall be shared by children of the deceased daughters
Now following questions shall require expert advice –
1 - Whether the above solution is a proper solution considering provisions under Hindu Succession Act 1956
2 – If the children of deceased daughters demand equal share under Amendment 39 of 2005, will it be valid ?
Are the daughters coparceners having equal share ?
I feel that considering few recent judgments of The Supreme Court, as the succession has opened in 1988 and if a notional partition is assumed just before the death of the father, the property has already vested in class I heirs in 1988. Also as the father is dead before 9-9-2005 ( The father is not a coparcener as on 9-9-2005 ) the daughters cannot be considered as coparceners and the solution proposed by the brothers is correct as per prevailing Hindu Succession Act 1956 at the time of the death of the father.
3 – One of the daughters was married in 1953-54 ( before commencement of HSA 1956 ). The marriage was not a Registered
Marriage and Special Marriage Act 1954 is not applicable ( Hindu Marriage Act is applicable ). In such a case will there be any effect on succession ?
One local lawyer advised us that the mentioned daughter will not get share in the balance property as she is married before commencement of HSA 1956.
4 – The balance property part-2 and part-3 is in possession of the youngest son ( from 1976 to 1993 the possession was
unofficial on mutual understanding and after 1993 the possession is official or legal as per the signed affidavit ).
If the youngest son files a suit claiming the ownership of the entire balance property, will it be supported by the court ?
5 – In 1993 all the five heirs have signed an affidavit in front of the Executive Magistrate of the District in which Two sons and Two daughters have agreed in writing to leave their share in part-2 and part-3 of the balance land in favor of the third youngest son. The affidavit was not registered.
Now as on today both the daughters are dead, in this situation can the said affidavit be considered as Testamentary Disposition of the deceased daughters made in 1993 ?
If yes, the children of the deceased daughters will not get any share in the balance property as the same is given to the youngest brother by their mothers.
The remaining sons who signed the affidavit are still alive and for them the same cannot be considered as
Testamentary Disposition and if required, the sons have agreed to make a fresh will.
6 – I am a son of the eldest son. Depending upon your expert advice, I will decide whether to file a suit or to go for a further Compromise.
Your prompt reply giving expert advice will be highly appreciated.
With Best Regards.
Ajit Shripad Athavale
Cell - 9822322248
sanjeev murthy desai
(Expert) 30 November 2011
1 - Whether the above solution is a proper solution considering provisions under Hindu Succession Act 1956
Ans: No its not proper division however if parties are ready to divide like that there is no problem.
If the children of deceased daughters demand equal share under Amendment 39 of 2005, will it be valid ? Are the daughters coparceners having equal share ?
Ans: Yes it is valid demand and all the children of deceased daughter of have equal rights. Yes they are coperceners
3 – One of the daughters was married in 1953-54 ( before commencement of HSA 1956 ). The marriage was not a Registered
Marriage and Special Marriage Act 1954 is not applicable ( Hindu Marriage Act is applicable ). In such a case will there be any effect on succession ?
One local lawyer advised us that the mentioned daughter will not get share in the balance property as she is married before commencement of HSA 1956.
Ans: Marriage is immaterial as per succession.
4 – The balance property part-2 and part-3 is in possession of the youngest son ( from 1976 to 1993 the possession was
unofficial on mutual understanding and after 1993 the possession is official or legal as per the signed affidavit ).
If the youngest son files a suit claiming the ownership of the entire balance property, will it be supported by the court ?
Ans: Its depend upon his pleading, evidence and arguments in the court and Court is always protect a valid rights if he has any.
5 – In 1993 all the five heirs have signed an affidavit in front of the Executive Magistrate of the District in which Two sons and Two daughters have agreed in writing to leave their share in part-2 and part-3 of the balance land in favor of the third youngest son. The affidavit was not registered.
Ans: Affidavit is document of statements and not transferable document.
Now as on today both the daughters are dead, in this situation can the said affidavit be considered as Testamentary Disposition of the deceased daughters made in 1993 ?
Ans: No, affidavit shall not be considered as testamentary disposition and in testamentary disposition testator intention is more important however affidavit is only deponents statement and it is not his intention.
R.Ramachandran
(Expert) 30 November 2011
Dear Mr. Ajit,
You say that the property is "ancestral". But you have to explain the complete facts on the basis of which you say that it is "ancestral".
Further, I am very much doubtful whether you are aware that the property is really a coparcenary property.
You did not indicate whether your mother was alive when your father died in the year 1988?
If it was a coparcenary property, it is not clear why did you give any share to your sisters, while you did not give a share to your mother, who is entitled to it.
You have to come with complete fact as regards the history of the land in question i.e. (i) from whom your father got that property; (ii) if he got that property from his father (i.e. your grand father) then when did your grand father die; (iii) how did your grand father obtain that property - whether self earned or he also got it from his father etc. etc.
Ajit Shripad Athavale
(Querist) 01 December 2011
Dear Sir,
Please note that I am son of the eldest son. The property in question is related to my grandfather who died in 1988. Now I have taken initiative to distribute the balance property in my father, Two Uncles and Two deceased Aunts. My father and Uncles have assigned me the responsibility to distribute the property with some compromise and considering all applicable laws. The complete history of the property is as follows –
1 - My Grandfather died in 1988 and Grandmother died before him so there is no question of keeping any share for her. Other than Three sons and Two daughters, my grandfather did not have any class-I heir.
2 – Part-1 of the property was self earned by our Great Grandfather ( Father of the Grandfather ) and the same was given to our Grandfather by our Great Grandfather which was Sold in 1993 by My Father Two Uncles and Two Aunts and the money was equally distributed.
3 – Out of Part-2 of the land ( Total 100 Guntha), 60 Guntha land was self earned by our Great Grandfather ( Father of the Grandfather ) and the same was given to our Grandfather. Remaining 40 Guntha land of part-2 was purchased by our Grandfather from the agricultural income derived from the 60 Guntha ancestral land. ( My Grandfather was a farmer and there was no other source of income other than agricultural income ).
4 – Out of Part-3 of the land ( Total 50 Guntha ), 20 Guntha land was self earned by our Great Grandfather ( Father of the Grandfather ) and the same was given to our Grandfather. Remaining 30 Guntha land of part-3 was purchased by our Grandfather from the agricultural income derived from the 20 Guntha ancestral land.
In short, Major part of the land was property of my Great Grandfather ( Father of the Grandfather ) who was having Four sons and my Grandfather was one of them. My Great Grandfather has given the major part of the land to my Grandfather and remaining land was purchased by my Grandfather form the agricultural income derived form the ancestral land.
My Great Grandfather ( Father of the Grandfather ) died in or around 1954.
Considering all above facts, I mentioned the property as Ancestral and coparcenary.
I hope I have given the required information about the family and land.
In the above case of succession, please add one more question -
As already explained, Grandfather expired in 1988. All daughters were married before his death. All sons were separated and only the youngest son was looking after the common property. If notional partition is assumed just before death of the grandfather,
In this case my question no. 6 is whether Hindu Undivided Family ( HUF ) exists as on 9/9/2005 ?
R.Ramachandran
(Expert) 01 December 2011
I agree the property in question is "ancestral" in character.
With the death of your grand father in 1988 the coparcenery property by operation of law stood partitioned.
Your deceased grand father and his three sons were the eligible coparceners each one of them getting 1/4th share.
But, since your grand father died intestate (without leaving any will) his 1/4th share would have gone by way of inheritance equally amongst all his legal heirs viz., three sons and two daughters.
If you had done that, it is ok, otherwise to the extent the daughters (i.e. your aunts) are eligible for their share and consequently the husband/children of your aunts are eligible.
The 2005 Amendment Act or the earlier Maharashtra Amendment Act of 1994 have no application in your fact situation.
Ajit Shripad Athavale
(Querist) 02 December 2011
Dear R.Ramachandran Sir,
Thanks a lot for the expert advice.
I will convey the same to all my Uncles and Aunts and will take care that all the interested parties will get the share which they deserve.
