Division of family properties
Querist :
Anonymous
(Querist) 11 April 2020
This query is : Resolved
My grand-father (my father’s father) is not having any type of property either by way of self-acquired or ancestral and expired in the year 1989.
My grand-mother (my father’s mother) is having one property which she got from her father on the division of her father’s property and expired in the year 1975.
My grand-father and grand-mother (referred above) is having 3 sons (namely A,B & C) and one daughter (namely D).
My father (A) and my uncle (B) expired in the year 2005 and 2012 respectively.
My grand-mother gifted her property (I e property referred above) to her 3 sons during her life time by way of registered gift deed.
After some days of gift deed, my uncle (C) has relinquished his share of property to my father (A) and my uncle (B) by way relinquishment deed after receiving appropriate consideration, further my uncle ( C) has clearly mentioned in the relinquishment deed that I don’t want to live together with My father (A) and my uncle (B) in the relinquishment deed.
We have other properties as well as apart from the one mentioned above, some properties are having Sale Deed in the name of only one member and some properties are jointly held by the members of the family.
My father (A) and my 2 other uncles (B & C) and their sons and daughters we have all in one around 50 members in the family and live together till 2018 and till today partition is not happened, negotiation is going on between the elders to settle all the properties since from 1 year and now pending due to disagreement among the members of the family and now I have decided to move Court for partition.
My questions to the Experts are as below:
1) How much share of property my father (A) and my uncles (B & C) will get in the above gifted property by my grand-mother and in other properties?
2) How much share of Property will my Aunt (D) will get in the above gifted property by my grand-mother and in other Properties?
3) What is the position of my uncle (C) in related to other properties of the family? as he has declared in the relinquishment deed itself of living separately from my father (A) and my uncle (B)
4) Can my uncle (C) get share in the properties which are purchased after the relinquishment deed?
5) How all the properties in the above case will be divided among the members of the family?
6) Can any member of the family, claim particular property as his self-acquired? If sale deed is in his name, even though the sale consideration has been contributed by all the members of the family, but it is very difficult to prove for other members as all consideration is paid in cash and the sale consideration mentioned in the Sale Deed is substantially lower from actual price to avoid higher stamp duty.
7) If I approach to the court for partition, then I have to include all properties in the suit or only I have to include those properties which are not in my name?
8) Can you guess the final decision of the Court in this matter regarding division of properties?
Raj Kumar Makkad
(Expert) 11 April 2020
1. The issue of the gift has already been settled by way of the relinquishment deed duly registered between your uncles and your father. 1/2 share in the said property left by your grandmother belongs to your father and rest 1/2 in favour of B. You have not given details of the other properties owned by your father or other members of the family hence no definite opinion can be offered without having due knowledge of the properties.
kavksatyanarayana
(Expert) 11 April 2020
as per me, Your uncle (C) has relinquished his rights over the Gifted property (given by your grandmother). But not on other properties. After that, your family members purchased the property through sale deed C has not relinquished. isn't it? so state complete details to get replies.
Raj Kumar Makkad
(Expert) 11 April 2020
2. Your aunt has no share in the gifted property which exclusively belongs to your father & your uncle B.
Raj Kumar Makkad
(Expert) 11 April 2020
3. Living separately shall not disentitle your uncle C to claim share in the properties if the same have been purchased by HUF but for establishing the status of HUF, various parameters are required to be existing which according to the facts posted by you, do not exist so he cannot claim if the property do not stand registered in his name.
Raj Kumar Makkad
(Expert) 11 April 2020
4. The basic question is whether there is HUF or not. If the same do not exist then no other person except in whose name the said property/properties do exist is the exclusive owner to that property. Merely residing somewhere else is not a disqualification to claim share if HUF do exists.
Raj Kumar Makkad
(Expert) 11 April 2020
6. The source of the purchase price has no relevance and thus the person in whose name the said property is registered, is its sole and exclusive owner except if the family is Hindu Undivided Family as per law which in your case, there is no such recital.
Raj Kumar Makkad
(Expert) 11 April 2020
5. No. The registered owner shall be exclusive owner to the said properties except if it is proved that there is HUF and the same stands purchased from common pool.
Raj Kumar Makkad
(Expert) 11 April 2020
7. You have already been advised above. Every individual is owner of his own property so the question for going to court do not seems justified and even then if you desire then include entire properties so as to claim that the same have been purchased from common income of the joint family. In that event, you need to establish the grounds of your suit and a definite share shall be required to be claimed in that event.
Raj Kumar Makkad
(Expert) 11 April 2020
8. If I have to give the final decision, What shall be the work of the court and why shall you go there? This is a question having no legal sense.
P. Venu
(Expert) 12 April 2020
The posting is incomplete as to the properties for which partition is to be sought, vague as to the title to the properties and haphazard as to the questions posed. It is impossible for any person of ordinary prudence to make any meaningful suggestion.
KISHAN DUTT KALASKAR
(Expert) 12 April 2020
Dear Sir,
I agree with the opinion of Expert Raj Kumar Makkad who has given detailed replies.
Rajendra K Goyal
(Expert) 12 April 2020
You said:
1) How much share of property my father (A) and my uncles (B & C) will get in the above gifted property by my grand-mother and in other properties?
Reply:
The property was gifted by your Grand Mother to her 3 sons (A,B,C). From your language it seems only the portion of this property was relinquished by uncle C. The gifted property would be divided between A & B equally.
Rajendra K Goyal
(Expert) 12 April 2020
You said:
2) How much share of Property will my Aunt (D) will get in the above gifted property by my grand-mother and in other Properties?
Reply:
Mother of Aunt D has not gifted any share to D, she is not entitled for any share in the said property of her mother.
Rajendra K Goyal
(Expert) 12 April 2020
You said:
3) What is the position of my uncle (C) in related to other properties of the family? as he has declared in the relinquishment deed itself of living separately from my father (A) and my uncle (B)
Reply:
Uncle C has not relinquished his share in other properties, if any, he has share in other property which are in joint ownership of A,B,C.
Uncle C is absolute owner of property, if any, which is in his single name till proved it is JUF property or property with joint ownership.
Rajendra K Goyal
(Expert) 12 April 2020
You said:
4) Can my uncle (C) get share in the properties which are purchased after the relinquishment deed?
Reply:
a) Property purchased in the name of A or B : In such properties C has no share till it is proved it is joint Hindu Property or property with joint ownership.
b) Property in name of C: C is absolute owner of property which is in his single name till proved it is JUF property or property with joint ownership.
Rajendra K Goyal
(Expert) 12 April 2020
You said:
5) How all the properties in the above case will be divided among the members of the family?
Reply:
a) Gifted property: C has relinquished his share / right, property would be divided between A & B.
b) Property purchased in the name of A or B : In such properties C has no share till it is proved it is joint Hindu Property or property with joint ownership.
c) Property in name of C: C is absolute owner of property which is in his single name till proved it is JUF property or property with joint ownership.
d) Property in Joint name of A,B,C : All three would have equal share.
e) HUF property, if any: All three would have equal share.
Rajendra K Goyal
(Expert) 12 April 2020
You said:
6) Can any member of the family, claim particular property as his self-acquired? If sale deed is in his name, even though the sale consideration has been contributed by all the members of the family, but it is very difficult to prove for other members as all consideration is paid in cash and the sale consideration mentioned in the Sale Deed is substantially lower from actual price to avoid higher stamp duty.
Reply:
If the property is in the name of any family member and it is difficult to prove that it was form HUF property, or money was paid jointly, said family member is absolute owner of the property.
Rajendra K Goyal
(Expert) 12 April 2020
You said:
7) If I approach to the court for partition, then I have to include all properties in the suit or only I have to include those properties which are not in my name?
Reply:
One cannot ask for the partition of any property which is not in his name. Partition of joint property is possible.
Rajendra K Goyal
(Expert) 12 April 2020
You said:
8) Can you guess the final decision of the Court in this matter regarding division of properties?
Reply:
Nothing can be predicted. Legal position clarified based on available facts.
T. Kalaiselvan, Advocate
(Expert) 13 April 2020
1. Your father and his brothers shall be entitled to one fourth share in the other properties which have not been divided along with their sister and left behind by your grandmother upon her intestate death(provided your grandmother is not living anymore).
The property that was gifted to the sons shall be divided equally by dividing the same into three parts.
2. Your aunty shall not be entitled to any share in the gifted property provided the gift deed was executed by your grandmother by a registered deed.
T. Kalaiselvan, Advocate
(Expert) 13 April 2020
3. Your uncle C has relinquished his rights only in the gifted property, therefore his rights are secured and he is entitled to a rightful share in other properties.
4. Yes, he can very be eligible for a share provided this property was bought by your deceased grandmother or by joint family under HUF.
T. Kalaiselvan, Advocate
(Expert) 13 April 2020
5. The properties bought under HUF or within the joint family then the properties other than the gifted property, can be divided into four equal parts, and one such share shall be allotted to each child of your grandmother.
T. Kalaiselvan, Advocate
(Expert) 13 April 2020
6. If any property has been purchased and registered on any individual's name, then tht individual shall be the absolute owner of that particular property, others do not hav any rights over it.
T. Kalaiselvan, Advocate
(Expert) 13 April 2020
7. You can include all the properties in which your deceased father has a right over his legitimate share in them.
Except for the properties that have been registered on any individual's name, all other properties can be included in the proposed partition suit.
T. Kalaiselvan, Advocate
(Expert) 13 April 2020
Where is the question of guess, you have file the partition suit claiming your rights in the share of properties that your father was entitled.
Therefore fight it out strongly on the basis of merits and documentary evidences in your side.
Raj Kumar Makkad
(Expert) 16 April 2020
As all the properties are duly registered in the individual's names, the question of their partition do not arise.
Rajendra K Goyal
(Expert) 17 April 2020
To divide the gifted property in which uncle has relinquished his rights in metes and bounds, court can be moved in case no mutual agreement arrived.
Querist :
Anonymous
(Querist) 27 April 2020
I am very grateful and many many thanks to all Experts and some of the Experts ask me the details of other properties held by our HUF, Therefore I am giving full details of all the properties as below:
Ours is a joint family having joint in all respects of estate, food etc. total members of the family is around 50 and till today partition is not happened and negotiation is going on between the elders to settle all the properties since from 2 years and now pending due to disagreement among the members of the family.
Further, I would like to inform to the Experts that we don’t have any documentary proof that our HUF is partitioned till today.
My grand-father (my father’s father) is not having any type of property either by way of self-acquired or ancestral and expired in the year 1989.
My grand-mother (my father’s mother) is having one property which she got from her father on the division of her father’s property and expired in the year 1975.
My grand-father and grand-mother (referred above) is having 3 sons (namely A,B & C) and one daughter (namely D).
My father (A) is having 4 sons (assume namely AS1, AS2, AS3 and AS4 and 2 daughters and my father expired in the year 2005
My uncle (B) is having 5 sons (assume namely BS1, BS2, BS3 BS4 and BS5 and 2 daughters and expired in the year 2012.
My another uncle is having 2 sons (assume namely CS1 and CS2 and 6 daughters and still alive.
My father (A) is a primary school teacher and my 2 uncles (A & B) are engaged in textile business.
We don’t have any properties in the name of either my own sisters or cousin sisters.
All the sons of A B & C are consisting of professionals and businessman and all the earnings are pooled together as HUF Funds and the actual fact is that all the below properties are purchased from earnings of all the members of the family.
Property No Name of the Owner(As per registered sale deed)
1 BS3
2 B
3 B
4 Jontly in the name of BS4 and son of AS1 & AS2
5 Jontly in the name of BS4 and son of AS1 & AS2
6 Jontly in the name of A & B
7 Jontly in the name of AS1 & BS2
8 Wife of C
9 Jointly in the name of BS3 & BS4
10 Jointly in the name of AS2 & BS1
11 Wife of A
12 Jontly in the name of A & B (Refer Note-1)
14 BS1
15 AS1
16 AS2 & BS3
17 CS1 (Refer Note-2)
18 AS4
19 BS3
20 Jointly in the name of AS3, BS3 & CS2
21 Jontly in the name of all the sons of A, B & C
22 A (Refer Note-3)
Note No-1: This property belongs to my grand-mother (my father’s mother) and she got this property from her father on the division of her father’s property and expired in the year 1975, This property has been gifted by her to 3 sons A, B and C during her life time by way registered gift deed. After some days of gift deed, my uncle (C) has relinquished his share of property to my father (A) and my uncle (B) by way relinquishment deed after receiving appropriate consideration, further my uncle (C) has clearly mentioned in the relinquishment deed that I don’t want to live together with My father (A) and my uncle (B) in the relinquishment deed.
Note No-2: Even though this property is registered in the name of CS1, all purchase consideration has been paid in cheques which belongs to bank accounts of AS3 and AS4. The details of the same are as follows:
Purchase Consideration details as per the sale deed are as follows:
Total Consideration Rs 24 Lac
Bank Housing Loan Rs 15 Lac from Co-Operative Bank which is repaid by AS3 and AS4 within 6 months from the date of purchase.
Balance of Rs 9 Lac in form of Cheques which are debited in bank accounts of AS3 & AS4
The reason for not registering the above property in name of AS3 & AS4 is due to the fact that both are Auditor of a Co-Operative Bank, where housing loan taken and Bank disagree to sanction loan in favour of AS3 & AS4 as it will leads to against auditing ethics.
CS1 is an employee in a Private Company and his salary at the time of purchase of the above property is Rs 12000/- PM.
Note No-3: This is an agricultural land and sale deed is in the name of my father (A) but in Land Revenue records it is showing in the name of my father (A), and other 2 uncles (B) and (C). and this happened due to the below reason:
The above agricultural land is purchased by my father (A), after the next day of purchase itself, my father (A) reported to the registering authority that my family is HUF having myself and my 2 other brothers and submitted letter, requesting to the Land Revenue Department to add his 2 other brothers name in the land records.
On the request and report by my father (A), Land Revenue Department have added my 2 uncle name in the land records and presently all the name of 3 (My father and 2 brothers of my father) are reflecting in Land records as the owners of Land.
Under the above circumstances, I want to ask to the Experts, how all these properties will be divided among the family members legally, as of now arrangement and settlement among the family members has failed and now only left for me to step out to the door of Civil Court.
Raj Kumar Makkad
(Expert) 27 April 2020
After going through the detailes of your properties, it is advised you to avail personalized services of a civil lawyer instead of getting free advice here which otherwise may be confusing because many experts means many opinions.
T. Kalaiselvan, Advocate
(Expert) 27 April 2020
I endorse the latest views of expert learned Advocate Mr. Raj Kumar Makkad Sir.
As suggested you may better sit and discuss at length with a local advocate or any advocate of your choice even outside your town on the basis of the relevant papers and documents and clarify all your doubts to proceed as suggested.
This appears to be an ocean and the entire doubts cannot be cleared properly by forums like this, this needs proper scrutinisation and expertise of an experienced and skilled advocate practicing in this field.
Hence you may decide, if you are really interested in getting proper solutions to this issue.
P. Venu
(Expert) 27 April 2020
In spite of the further information provided, still, material facts are missing. Please provide the complete information, esp. as to:
Facts now posted reveal that you are the son of A. But what is your identity - is it AS1, AS2, AS3 or AS4? Please inform.
Secondly, are you a professional, employed or a in business? If in business, it a joint enterprise with any or all of your siblings and/or cousins?
Thirdly, your grandfather had not left behind any property or any corpus which could have constituted the nucleus for the present HUF, as claimed. Is it not true?
Fourthly, your uncles B & C [not A & B (A is your father, a primary school teacher) as posted ] were in textile business - has it been a joint business? Who is/are managing the said business now?
How are your siblings employed or in profession? Are any of them in joint business with the cousins?
Who is/are those wishing to take the matter to the court?
Raj Kumar Makkad
(Expert) 27 April 2020
I pay my regards to the expert Shri t. Kaliselvan for endorsing my reply to the author. Such detailed documentary issue cannot be properly addressed here in this section.
Rajendra K Goyal
(Expert) 28 April 2020
Property of your Grandmother:
The property came in the hands of your Grandmother from her father after division of property of her father. This is treated as self-acquired property in her hands. She gifted this property to all her three sons through Registered gift deed. This is again treated as self-acquired property of three sons.
Son C has relinquished his share in favor of A & B.
The language / details / validty of deed of relinquishment need to be gone through. Its validity can be challenged as it was in his hands through gift and not by family partition.
A gift deed from him would have been better method in the given circumstances.
Discuss in detail with local lawyer expert in family matters.
Rajendra K Goyal
(Expert) 28 April 2020
Note 2:
The property is registered in the name of CS1, he is owner of the property. The amount was not paid from the account of Karta of HUF / HUF account, there is negligible chance of success by raising dispute regarding it being a HUF property.
AS3 & AS4 can demand back the amount paid by them provided it is within the limitation.
