Share in father's self earned property for 2nd wife's daughter.
meghana
(Querist) 29 August 2013
This query is : Resolved
I am a daughter from 2nd marriage. Now i am 40-years-old. My father married my mother when his first wife was alive, with the consent of his first wife. There are 3 sons from my father's first wife. My step brothers shared the immovable properties amongst themselves after the expiry of my father in the year 1985. I want to know whether i have the right in the so said immovable properties solely earned by my father? My father had not left WILL at the time of his death.
Shantilal Pandya
(Expert) 29 August 2013
You had that right to inherit the property,you ought to have claimed that right on the death of your father, but not claiming that right for nearly 28 years is fatal for sustaining your claim as your step brothers might be in possession of the property claiming as owners thereof to your knowledge and exclusion.
prabhakar singh
(Expert) 30 August 2013
The marriage with your mother of your father
even with consent of his first wife is void
and you are illegitimate yet law recognizes you a sharer in your father's self earned properties to the extent of 1/4th.You can file a suit of partition for your share,though your brothers can claim your hostile ouster.Normally this plea does not sustain against a co-owner but then you are step-in-relation.Has there been any incidence of denial of your share in past by them of your right which they can prove?
Rajendra K Goyal
(Expert) 30 August 2013
You have share in the property and can claim it.
ajay sethi
(Expert) 30 August 2013
agree with prabhakar singhji
Raj Kumar Makkad
(Expert) 30 August 2013
You can even now claim for 1/4th share in the property left by your father as his self acquired.
Shantilal Pandya
(Expert) 02 September 2013
The hostile claim by the brothers is reflected from the contents of query itself when she admits "My step brothers shared the immovable properties amongst themselves after the expiry of my father in the year 1985" undoubtedly burden of proving the hostile claim, affirmatively is on the brothers, however it is not impossible to do so in the light of the admission of the claimant, it is relevant to note that the claimant had the knowledge of her ouster since long , the cause of action for the claimant, in the circumstances has arisen in the year 1985.the law of limitation will take care of the rest Thanks,
prabhakar singh
(Expert) 02 September 2013
Query would be not the plaint unless querist
decides to draft personally.You are too fond of proving adverse claims.Your view is dangerous for co-sharers living out for bread.I do not think jurisprudence on subject also aligns you.Thanks.
Shantilal Pandya
(Expert) 02 September 2013
Honorable Sir ,
Those are the facts stated by her and we have no reason to doubt the veracity of the claimant, besides , it is the standard to state true story before the court without attempting to mislead the court, ouster can be pleaded by the dependents also in which case probably the claimant may not have any satisfactory answer to meet with, her conduct throughout the long passage of time will also be against her, it is needless to state that we have to opine truly on the facts stated by the claimant.
prabhakar singh
(Expert) 02 September 2013
Where have i denied that ouster can not be pleaded by a co-sharer ?Mr.Shantilal Pandya.
Many are there things 'easier to plead' but 'very very hard to prove'.
Shantilal Pandya
(Expert) 02 September 2013
I am sorry to candidly state that the views expressed by me are as per my understanding, and those may not be found to be according to law, thanks.
prabhakar singh
(Expert) 02 September 2013
In my very first post, i have taken notice of every pros and cons that may arise in such a litigation,the requirement was to look in detail of the precise answers i am used to make.it is of no use to drag here that much.Tanks of thanks.
Shantilal Pandya
(Expert) 02 September 2013
Dear Sir,
As per my understandings the question in the case on hand is as to whether or not the claimant can successfully get rid of the triggers of Limitation Law without manipulating the facts stated by her.thanks Mr. Prabhakar singhji for extending the thread in the interest of healthy exchange of views.
prabhakar singh
(Expert) 02 September 2013
And that is why my first post last line reads
'Has there been any incidence of denial of your share in past by them of your right which they can prove?'
Shantilal Pandya
(Expert) 02 September 2013
It is respectfully submitted that the distribution of the property among themselves by the two brothers denying ignoring and excluding the rights of a co sharer step sister would be sufficient to post the step sister with the knowledge of the nature of their claim, and in fact the step sister knows these facts since 1985,in the circumstances it may not be unfair to opine as has been done by me earlier. thanks .
prabhakar singh
(Expert) 02 September 2013
A resides in America while A has joint properties shared with B,C,D in a village of Gujarat where A has not visited for last 40 years,but between this time,say 35 years before, B,C,D partition these properties among them ignoring A's share taking 1/3 rd each of which A comes to know in 2013 when A VISITS HER VILLAGE.
TO YOU MR.Shantilal Pandya!B,C,D HAVE OUSTED
A IN HOSTILE MANNER.
TO ME THEY HAVE NOT.
LET THIS DIFFERENCE BE ALIVE AS IT WOULD BE IN CASE THIS CASE IS CONTESTED IN COURT OF LAW.
UNFORTUNATELY I WOULD NOT BE THERE TO WELCOME YOU AS DEFENDANT.
WHY ARE YOU IGNORING THAT QUERY HAS BEEN RAISED IN 2013?
WHY SHOULD ANY ONE ATTRIBUTE HER KNOWLEDGE SINCE 1985?
Shantilal Pandya
(Expert) 02 September 2013
Dear Sir ,
it is true that there cannot be ouster unless it is done openly and to the knowledge of the claimant, It is not the case of claimant that the partition of the property only between brothers to the exclusion of the claimant was not known to the claimant since 1985, more so it is hard to conceive that the claimant was ignorant of her rights and the invasion thereon as she has never stated by her that she was ignorant about the things that has happened.
I would request you to please minutely go through my first posting on the issue, the opinion expressed therein is not absolute but is subject to exclusion and knowledge of claimant. the acquisition of ownership by adverse possession is recognized by law as a rule of limitation as a bar of taking action in such a case and also operating as an extinction of title under Section 27 of the limitation Act, I would submit that the case referred to by Shri Prabhakar singhji is distinguishable on facts. before parting with this posting, I appreciate the contribution extended by Shri Prabhakar singhji as it is painstaking and making the discussion on the topic more interesting, live, and is valuable . Thanks
