Proprty issues
rupeshgangurde
(Querist) 03 February 2014
This query is : Resolved
Subject: Dispute of Parental undivided property.
Mr. Yeshwant the landlord (karta) of the family has the property (i.e. 2.73 Hectares of Agricultural land) situated in Maharashtra state, married to Vimalbai and had a son name Ganpat in the year 1940. Mr. Yeshwant got divorced somewhere in the year 1945. During that period divorce was made by panchayat, hence no record of divorce is available now. Mrs. Vimalbai had expired in the year 2002.
Again Mr. Yashwant has got married to Durgabai in the year 1945 and had one son and four daughters with his second wife. He had added the name of his four daughters in the 7/12 sheet of his ancestral property (agricultural land) as other right holders as a part of marriage agreement between Durgabai and him. This was done by giving application to Talathi and thereby to make corresponding entry in the 7/12 sheet. Both of his wives are expired now.
After his demise in the year 1999, all the four daughters have added their names in the main right holder column of 7/12 by giving application to Talathi in the year 2008. All the four sisters have been married before 1994 and are well settled. The father (i.e. Yeshwant) had not executed any will or partition before his demise.
In 2012, the second wife’s son name Vijay has purchased the share of his all four sisters through a registered sales-deed leaving behind only 1/6th share of the property to his elder brother (i.e. Mr. Ganpat of first wife’s son).
According to the Maharashtra Amendment adds to the principal Act (THE HINDU SUCCESSION ACT) a new chapter II-A has excluded a daughter married before 22/06/1994 (the date of commencement of the act) from the benefit of getting equal share in the father’s property. Also the Hindu Marriage Succession Act amendment 2005 gives a daughter equal right in the property by birth. But the applicability of the Act is from the year 2005. The Act neither speaks about a daughter married before 2005 nor it gives the clear idea about the share governed by the state law. The laws in the states in India relating to Mitakshara coparcenary property differ.
So kindly suggest the share of first wife’s son and the share of daughters in the father’s ancestral property, as the daughters have been married before 22/06/1994. If the petition is filed now then what will be the result with respect to the law. Is notional partition applicable or exists in this case, as the KARTA of the family has not executed any will or partition. For example: -
i) 1/3rd share of first wife’s son.
ii) 1/3rd share of father (Landlord).
iii) 1/3rd share of second wife’s son.
iv) And again from 1/3rd share of property of father, the first wife’s son will get 1/6th share, i.e. His total share in the property = 1/3rd share of his own + 1/6th share from his father. (As the father has 2 sons & 4 daughters).
v) Kindly explain whether Article 245 of the Indian Constitution is applicable for this case for resolving conflict between the laws i.e. The Maharashtra Amendment to Hindu Marriage succession Act 1994 Chapter II A and Hindu Marriage succession Act amendment 2005.
References: -
i) The Maharashtra Amendment to Hindu Marriage succession Act 1994 Chapter II A
ii) Hindu Marriage succession Act amendment 2005
iii) Article 245 of the Indian Constitution
iv) Section 29 A Mitakshara Law
P. Venu
(Expert) 04 February 2014
Prima facie, the apportioning of the property among all the siblings is amicably and equitably settled. What is the problem?
T. Kalaiselvan, Advocate
(Expert) 05 February 2014
In your query you have stated that the ancestral properties were partitioned into six equal shares and all the six surviving siblings/legal heirs have inherited the property, what is your question?
Raj Kumar Makkad
(Expert) 16 February 2014
You have not raised specific query so experts can't reply. facts are clear.
Anirudh
(Expert) 16 February 2014
Dear Mr. Rupesh,
Your understanding of the legal position is perfectly correct.
Since Mr. Yashwant expired in the year 1999 and only the Maharashtra Amendment was in vogue, and therefore there is no role for Art. 245 in the given situation. Further, the notional partition had to take place in terms of Sec. 6 of the HSA 1956 as it existed then. Therefore, the calculation of share worked out by you is legally correct and sustainable. (By the way, it is not intellectual property right.)
Dr. Jyothi Vishwanath
(Expert) 19 February 2014
Hindu Succession Amendment Act 2005 being the central act, overrides the provisions of the 1994 state law.
If present law is considered, the daughters will take one equal share in the property left by the father.
When the daughters entered their names in the pahani, at that time only Maharashtra law was in force. They were not entitled to an equal share as per the Maharashtra Law.
But since it happened without any objection by the brothers, there is no meaning in challenging it now.
Now all got equal shares. Matter ends...
