Applicability of section 23 of hs act,1956 amended on 2005
perumal
(Querist) 03 November 2018
This query is : Resolved
Sir,
I have sought for opinion on the applicability of sec 23 of Hindu Succession Act, 1956 as amended during 2005.
The History is narrated below as already forwarded.
A property of two houses jointly constructed stands in my mother’s name. She died during the year 1996, well before the enactment of amendcd Act, 2005. The legal heirs are as follows.
1. My father – Widower - died during 2012, ie after the enactment of amendcd Act, 2005
2. Myself - only Son
3.Ist daughter – married before the death of my mother i.e., during the year 1979
4. IInd daughter – married before the death of my mother i.e., during the year 1983
My father while he was alive, released his 1/4th UDS share of one house (among two) on 3rd october, 2005 by a registered deed to one of my sister and also made a open in the centre wall between two houses and kept open to the other house which is under my occupation and enjoyment. Through the new opening door, my sister who enjoyed the other house and IInd sister (she was allotted a house by my father in her name by registered deed) blocked my kitchen, bath room, latrine and stair to upstair threatening that equal share should be apportioned and partitioned.
I have not yet approached any court to seek remedy.
I have received good suggestion and opinion on applicability in my favour by our experts, Mr.Shashikant Patiln and Hemant Agarwal on this issue.
While I have gone through some judgements of Apex Court, in one case it is noted as below.
“ The recent precedents of the Hon'ble Apex Court are consistent in laying down the law that in matters where no partition was effected anterior to 20th December 2004 or no final decree was passed or any testamentary disposition took place before that date, the daughters on par with the sons could seek partition as the co-parceners”.
In my case also no partition has not yet been made till date and no court case is pending in any court in this regard. If it is so, shall my sisters be treated on par with me (son) and could seek partition as the co-parceners.
I shall be very thankful to clear my doubts, sir.
Perumal.M
Vijay Raj Mahajan
(Expert) 03 November 2018
The property of your mother is not copacenary property, its her absolute property that is inherited by all her children and husband. Each getting one share each.
Daughters marriage is not of any consequences while deciding their shares in the property left by their mother.
perumal
(Querist) 03 November 2018
Sir, since my mother died during the year 1996, without making any will or partition among our heirs, our two family dwelling house situated jointly being using our joint family Property. But my two sisters are creating a lot of problems demanding partition. Thus, the cause of action arose on the date of my mother’s death. We have not yet filed any case regarding the partition of this dwelling house property till now.
In this position, shall the erstwhile section 23, of 1956 act apply now having taken into account the date of death of my mother, before the court of law or not.
Thanking you, sir.
Vijay Raj Mahajan
(Expert) 03 November 2018
Yes, the Act apply for partition of property between all heirs of your mother including your two sisters, section 23 is already deleted in the Act.
Guest
(Expert) 03 November 2018
What for you waited for 22 years to decide on partition of property?
Dr J C Vashista
(Expert) 04 November 2018
Very well advised by expert Mr. Vijay Raj Mahajan, I agree and appreciate.
You are required to reply to a valid and relevant question raised by expert Mr. PS Dhingra for maintaining silence for 22 years and waking up today ?
Prima facie it is an academic timepass question for debate.
Kumar Doab
(Expert) 04 November 2018
You have posted your correct understanding on Legal heirs of your deceased mother that is owner of the said property.
On matter of partition the legal heirs have been arguing amongst themselves and have neither resolved the matter amicably amongst themselves nor approached court.
The extract posted by you is clear on interpretation of the provisions of the Act.
IT is not made clear by you in thread(s) instated by you, on grounds of which provisions of law the share of sisters can be denied.
Either continue to enjoy the property as status quo or resolve amicably amonst yourselves (with boundaries) and register the deed or approach court to partition by boundaries.
The counsels approached by you as posted above by you can guide for further approach in your matter.
perumal
(Querist) 09 November 2018
Sirs, i have decided to make a partition through court equally among us and for which I have approached a lawyer. A lot of thanks for you all for valid advice and guidance. Now my query was resolved.
Regards.
Perumal.M
Kumar Doab
(Expert) 10 November 2018
Even if the relations have soured try to resolve amicably and if possible register the deed say family settlement deed with boundaries and close the matter forever.
IT may not be possible to divide the house vertically and horizontally.
Some understanding and settlement is required.
Kumar Doab
(Expert) 10 November 2018
You may take help of elders of your family, competent and experienced well wishers, seasoned PIP’s, helpgroups, community leaders, NGO’s, experienced colleagues, associations, etc to resolve the matter if any, and/or find a very able LOCAL counsel specializing in concerned filed of law e.g; Succession/Civil matters as in your case, and well versed with LOCAL applicable rules, precedence, latest judgments etc …. and worth his/her salt, can advise you and even help you.
Online discussions are not substitute to in person discussions with a very able counsel of unshakable repute and integrity specializing in concerned field of law.
There are such very able counsels at each location.
You have already approached a counsel and your counsel can help you.
