Family property related
Balachandra
(Querist) 28 October 2013
This query is : Resolved
This is related to my sister & her children property-share related.
My sister had two children (Age:11 & 8 years resp.) and she is a widower. My brother-in-law was expired 4 years ago. After his death, my sister left his husband’s house (Joint family) and has been staying in a separate rented house in my native along with her children. She is bread earner for her children and she is doing tailoring work at home.
There was no financial support from my brother-in-law’s family. My brother-in-law had one elder brother, 2-elder sisters and mother (His father was left the home –before my sister’s marriage due to unknown reasons). My brother-in-law and his elder brother along with their mother were lived in one house. This house is in the name of my brother-in-law’s mother. My brother-in-law’s sisters have been residing in other city.
Now, my brother-in-law’s mother is saying that his elder son got loss in his business and suffering with lot of credits/loans. Hence, she wanted to sell the house (property). She will be giving some minimal share for my sister’s children and rest to her (1) elder son & wife, Since, they didn’t have any children (2) elder daughter- since, she has two grown up children (3) younger daughter-since, she is also a widower with two grown up children (4) herself- since, she has no another income.
My brother-in-law had incurred my sister’s cash to build some portion of above said house (property). Presently, my sister & her children reside in rented house. My sister and her children have been suffering with severe disease and struggling physically and as well as mentally.
Please let me know, Is there any rule that the property shall be distributed to all the family members? If yes, let me know, What shall be the share to my Sister and her children as a matter of right? However, my sister wishes that she wants to retain her property, which she might get, so as to give her children, when they become adults for their education / marriage. Being her brother & well wisher, I wanted to support her in this regard. Please suggest/ advice legally how to proceed in this matter.
ABDUL RAZIQUE
(Expert) 29 October 2013
Dear Balchandra,
Your sister and her children have right in the property because they are the coparceners.
For more You READ CARE FULLY following matter,
Two laws are applicable to the workings of the Hindu Undivided Family (HUF), namely the Mitakshara Law and Dayabhaga Law, and the main difference between the two is that whereas Mitakshara Law applies to the entire nation, Dayabhaga Law applies only to Bengal and Assam. In broad terms, the main difference in interpretation between these two laws is that Mitakshara Law holds that the son acquires an interest in the ancestral property by birth itself, whereas under Dayabhaga Law the son acquires an interest in the ancestral property upon the death of the father... According to Mitakshara Law, a joint Hindu family consists of a male member of a family, along with his sons, grandsons and great-grandsons; whereas under Dayabhaga Law, females can also be coparceners. A further difference needs to be noted: under Mitakshara Law, ancestral property devolves on the death of a coparcener by survivorship; while under Dayabhaga Law, property devolves by inheritance and not by survivorship.
1. How long has the Coparcenary arise:
DAYABHAGA - no right by birth as on Coparcenary.After the death of Father, his sons constitute a Coparcenary.
MITAKSHARA- Right by birth.
2. Nature of interest:
DAYABHAGA- there is a defined interest. it does not pass by survivorship.
MITAKSHARA- Coparcener share is not defined.it fluctuate by birth and death of coparcener.
3. Expansion of Coparcenary:
DAYABHAGA- On the death of one of his heirs becomes coparceners.
MITAKSHARA- only males can be coparceners.
4. Alienee's right to ask for partition:
DAYABHAGA- any equity is held for an Alienee for a suit of partition. Can ask for a joint possession with coparcener.
MITAKSHARA- there is no definite share for an Alienee, but he may file a suit for the partition. hence suit is the only appropriate remedy.
5. Persons entitled to partition:
DAYABHAGA- The law does not confer on SON a right of birth hence he has no right for partition against the Father.
MITAKSHARA- SONS can institute a suit of partition even against the Father.
Rajendra K Goyal
(Expert) 29 October 2013
Your sister has share in the property in her matrimonial house. The property would be divided in 5 shares (Two brothers + two sisters + mother). From one fifth share each son and herself has one third share. If your sister does not want to sell her share, she should file a suit for partition.
ajay sethi
(Expert) 30 October 2013
agree with goyal
Chattopadhyay Arghya
(Expert) 02 November 2013
Is it joint hindu family having undivided interest? who built the house ? who transferred it in the name of mother? these are first relevant and vital.
V R SHROFF
(Expert) 02 November 2013
agree with goyal
