Dispute on partition
mrinal kanti naskar
(Querist) 19 May 2013
This query is : Resolved
Deed of settlement , date of Execution:- 22/11/1944.
It has been said in the deed that the property ( Address:- 5, Amulya Charan Das lane) belongs to Shyama Charan Das , S/O :- Late Bhuban Chandra Das , who executed the deed in favour of his wife Smt. Gyanada Mohini Das. In the same Deed it has been declared that after the death of Smt. Gyanada Mohini Das, their widowed daughter Saraju Bala Das will be entitled to enjoy the property by way of life estate as well as daughter of Saraju Bala Das, being grand daughter Rani Bala Das shall also be entitled to the property and enjoy the same as life estate . It has been declared in the said deed that after the death of Rani Bala Das, her male offsprings shall get the property.
The Deed was executed before Rani bala Das's 1st issue was born. Rani Bala Das expired on 05/05/2011 after prolonged illness leaving behind 2 sons and 4 daughters. None of the sons took care of her. Only 2 Daughters were there to look after her.
Now the question is, whether the property will be divided equally between 2 sons and 4 daughters or only between the 2 son .
Can the daughters claim their share over the property?
I ask this question since the deed was executed before the birth of Rani Bala Das's 1st issue and the executer of the deed did not know whether the 1st issue will be male or female. At that time it was customary to mention the male child.
prabhakar singh
(Expert) 19 May 2013
Section 13 of T.P.A governs the problem posed.In fact it was a WILL whereunder the interest was to divest in transferee male child(ren)after Rani Bala Das ceases to have her life interest,that is her death date on 05/05/2011.Noticeably male issues were born to her.Then when succession was to take effect transferees (sons) were in existence.
To my mind the WILL shall be given effect to. The person intending to transfer the property for the benefit of an unborn person should first create a life estate in favor of a living person and after it, an absolute estate in favor of the unborn person.Till the person, in whose favor a life interest is created is alive, he would hold the possession of the property, enjoy its usufruct i.e. enjoyment the property. During his lifetime if the person, (who on the day of creation of the life estate was unborn) is born, the title of the property would immediately vest in him, but he will get the possession of the property only on the death of the life holder.A life holder enjoys the property for his/her life only.He/she cannot transfer it to anyone. On his/her death, the property goes back to the settler or to anyone else, that the settler may direct and here settler has directed it to go in favor of sons of Rani Bala Das who are in existence.
Daughters of Rani Bala Das can not inherit on any score.
Raj Kumar Makkad
(Expert) 19 May 2013
In the given case, only sons shall inherit the property as per the will of Shyama charan Das. No deviation can be made at this stage may be beneficials know to this fact or not.
