Partition
rajashekhar
(Querist) 25 April 2020
This query is : Resolved
dear sir this is partition case a father in family died in 2011 while his wife died in 2010.father got married his all 5 sisters and 3 of daughters got married before 1985 amendment to hindu sucession act 1986 andhrapradesh. 2 dughters got married after 85 and last daughter was married in 1995 ,all daughters recived lagriculrural and from gayer which is ancestral in nature cane to father from his family .now can a daughter who married in 1995 file a partition suit based on andhra Pradesh amendment or cental law if residual property after all marriges is left with second wife male children where such father got a second marrige for sons and conventional cred under bigamy and later compromised with his first wife .is state law or cental law applicable in respect of andhra prafesh
rajashekhar
(Querist) 25 April 2020
certain typographic errors occurred .read as convicted
Raj Kumar Makkad
(Expert) 26 April 2020
First of all refer to the relevant sections of Hindu Succession(Andhra Pradesh Amendment) Act, 1986 which are as under:
29-A. Notivithstanding anything conttaincd in Eqml rights scction 6 of this Act- to daughterid coparcenary property*
(i) in a Joint Hindu Family govcrncd by Mitakdmra Law, the daughter of a coparcener shall by birth become a coparceser in hcr & n right in the same manner as the son and have the same rights in the coparcenary property as she would have had if shehad been E? son, inclusiv~ of the right to claim by survivorship ; and shaI1 be subject to the same liabilitiesand disabilities itz respcct thereto as the son ;
(ii) at a partiti011 in such a Joint BiuduFamily the coparcenary property shall be so divided as to allot to a daughter thc saw share as is ahtable to a son :
' Provided that the share which a pl-e-deceascd son or a ple-demised daughter would have got-at the partition if he or she had been alivc at the time of the partition shall be allotted to thc surviving child of such pre-dmascd son or of such pre-de~asd daughter;
Pmvided further that the share allotable to the prc-deceased child of a pre-deccascd son or of a PI-cdcceased daughter, if such child had been alivc at thc time of the partition, shaU bc allottcd to the child of . such pre deceased chdd of the pre-deceased son or of the prc-deceased daughter as lhe case may bc ;
(jii) any property to which a female Hindu homes entitled by virtue of thc provisions of clause(i) shall be held by her with the incidents of coparcenary ownership and shall be xegarded, notwithstanding anything contained in this Act or any other law for the rime being in tbm, as property capable of being disposed of by her by will at other testamentary disposition;
(iv) Nothing in clause (ii) shall ap ly to a daughter manied prior to or to a partition w g, ch had been effected before the commencement of the Hindu Succession (hdhra Pradesh Amendment) Act,
29-B. When a female Hindu dies after the corn. ~~0~~,"
mcnmment of the Hindu Succession (Andhra Pradcsh survivorship Amendment) Act, 1986 having at the timc of her death dmthan interest in a Mitakshara coparcenary property, herinterest in the property shall devalvc by survivorshipupon the survivhg members of the coparcenary and not in accordance with this Act :
Provided that if the deceased had left any child or child of a prc-deceased child, the intcrcst of the deceased in the Mitakshara coparcenary property shall dcvolvc by testamentary or interest at succession as the case may be,under this Act and not by survivorship.
Explaination-1.-For the purposes of this section, the intcrest of a female Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death irrespective of whkther she was entitled to claim partition or not.
Explaination-2.-Nothing contained in tllr:proviso to this section shall bo coustrued as enabling a pcrson who, before thc death of the dcocascd, ]lad separated himself or hcrself from the coparmnary or any of his or her heirs to claim on intestacy a share inthe interest referred to therein.
Raj Kumar Makkad
(Expert) 26 April 2020
Now you come to your case wherein the head of the family died during the year 2011 so the law of succession prevalent at that time shall have to be taken into consideration. Hindu Succession Act, 2005 was prevalent at that time so its provisions shall only be applicable in your case.
Section 8 in The Hindu Succession Act, 1956
General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
Raj Kumar Makkad
(Expert) 26 April 2020
According ro HSA, 2005, the earlier amendment act of Andhra Pradesh became null and void hence the provisions as mentioned in the first thread had to be applicable had HSA, 2005 not promulgated.
The second marriage during the subsistance of first is illegal and thus such second wife is not entitled for the grant of any share in the deceased, however, the sons born out of this marriage shall equally be entitled to inherit equal share with their sisters born out of first marriage. In the given case, every son or daughter born out either from the first or the second marriage irrespective of their dates of the marriages, shall be entitled to inherit the succession of deceased in equal share.
Dr J C Vashista
(Expert) 26 April 2020
The daughters of deceased have their equal right in the intestate (without any will executed) property left behind hence any one can seek partition.
Marriage of the daughters have no relevance/ consequence and all of them have equal share.
P. Venu
(Expert) 26 April 2020
You have mixed up the facts. Please post simple facts.
Rajendra K Goyal
(Expert) 26 April 2020
Daughters have equal right in the property of the deceased expired intestate, daughter can demand partition.
