Property
javed ahmed
(Querist) 10 October 2011
This query is : Resolved
how is property divided under hindu law?suppose there is a flat measuring more or less 1000 sq ft to be divided among 4 receipients,2 bothers and 2 sisters(all hindus)?
Arun Kumar Bhagat
(Expert) 10 October 2011
Query meant for Mr.Ramchandran & Prabhakar Singh ji, civilians.
R.Ramachandran
(Expert) 10 October 2011
Dear Mr. Javed,
You have to clarify whether the Flat which you are referring to is a 'dwelling house'.
Dwelling house means, a house which is being used for residential purposes. If there are several houses, but only one is used for the purpose of residence by the family members, that house alone willbe called 'dwelling house'.
You say that there are 4 recipients of the house. What do you mean by 'recipients'? Do you mean that they have to receive the house under a WILL or GIFT? Or they have to get the share by way of inheritance?
Whether the said flat is currently in the occupation of the said 4 persons or any of the 4 persons? If so, who is in occupation of the said flat?
Please also clarify what is the view of the two brothers?
After knowing the information to the above points, I will give my view to your query.
javed ahmed
(Querist) 11 October 2011
its a single dwelling house in the name of deceased father.no body is in occupation of the property.its under lock and key.the brothers wants distribution according to hindu law?under which provision can the sisters claim share in the property if the brothers refuse to oblige?
R.Ramachandran
(Expert) 11 October 2011
Dear Mr. Javed,
By answering that the said property is under lock and key and the brothers wants distribution according to Hindu Law, you have made my other questions redundant.
It appears that the deceased in whose name the property stands has not left any WILL. Therefore the entire property will go by way of inheritance amongst his legal heirs (widow (if alive), mother (if alive), son(s) and daughter(s)) in terms of Section 8 of the Hindu Succession Act.
If the brothers are reluctant to distribute the property to their Sisters, who are lawfully entitled to an equal share, then the Sisters can approach the Civil Court claiming their share by filing a suit for partition.
javed ahmed
(Querist) 11 October 2011
sir suppose if the deceased has left a will,will the distribution be made as per the will?in case of inheritance ,are the living members entitled to get equal share?what will be the effect if the one of the brothers is in possession of the property?
R.Ramachandran
(Expert) 11 October 2011
Where there is a valid WILL, the distribution will be according to the WILL.
In case of inheritance all the legal heirs, including grand children in case of pre-deceased son/daughter are entitled to get equal share.
You ask what would happen if only one of the brothers is in possession of the property?
This is a very typical question. In the Section 23 of the HSA, it has been provided that "partitionofthe dewllinghouseshall not arise until the male heirs choose to divide their respective shares therein." The plain meaning of provision implies that only when there are more than one male legal heirs are present the dwelling house would not be partitioned at the instance of the female legal heir. In other words, this restriction will not apply in case there is only one legal heir. In fact this view gets fortified if we observe that the provision also says that "until the male heirs choose to divide their respective shares therein". The question of respective share will arise only when there is more than one legal heir. Where only one male legal heir is present, the question of partition of the respective shares amongst the male legal heirs would not at all arise.
However, in Narasimhamoorthy vs. Sushilabai, AIR 1996 SC 1826, the Supreme Court has held that the restriction contained in Sec. 23 of the HSA would apply even where only a single male heir is present. This intrepretation by the SC seems to be erroneous for in such a situation, the right of the female heir would stand eternally denied for the question of partition of respective shares of the male heirs would not arise.
But in the instant case, as there are two male heirs present, only if they decide to partition, the female will get their share; otherwise not.
