What is the accurate legal definition of coparcenary property?
balwinder s bains
(Querist) 24 January 2013
This query is : Resolved
Dear Law Experts / Advocates,
Could you please provide the legal view on the following queries.
1. What is the accurate legal definition of COPARCENARY Property?
2. What is the difference between coparcenary and ancestral property?
3. It is said that every ancestral property is a coparcenary property but each coparcenary property can't be ancestral property?
4. How can be proved or What evidence is required to prove a property in question is the coparcenary property?
5. If a father and his 4 real brothers get their property from their father through Will in their names equally or in equal shares, The only son of one brother dies LEAVING BEHIND his wife and minor son, Now can this father or is it legal that this father transfers all the property in the name of his married daughter? He mentions in the family transfer deed That he is survived by his married daughter only and one of his daughter died in early age unmarried, his only son also died. He did not refer to his surviving wife, wife of his son or his surviving daughter in law and minor grandson aged about 4-5 years the class one heirs. Will this or can this be termed as suppression of material facts?
6. It is to note that this property is ancestral being getting transferred from great grand father in the name of grand father also mentioned as ancestral in revenue records.
7. Now can the class 1 heirs family members left behind or not declared in the transfer deed (Wife, daughter in law and grandson) get or claim their share in this property by approaching the competent court?
8, Is this property be treated as ancestral or coparcenary or self acquired?
Please advise.
Thanks and with regards,
prabhakar singh
(Expert) 24 January 2013
READ MULLA"S HINDU LAW.
NO ANSWER TO ACADEMIC QUERIES!
Anirudh
(Expert) 24 January 2013
Please indicate the facts instead of asking to explain as to what is coparcenary property etc.
If you want an appropriate answer, do the following:
1. First state who owned the property in the beginning. How did he get the property (self earned or otherwise).
2. What happened to the owner - is he alive or dead. If not alive, in which year did he die?
3. Who all [(wife, son(s), daughter(s)] survived him?
4. What was done to the property left behind by him. If partition was done, in which year it was done. Who got what share.
Like this, you come to the present status.
Then ask your query.
balwinder s bains
(Querist) 24 January 2013
Mr. Anirudh, Thanks very much for your immediate response.
1. The claim is to be made by one minor child - Grandson, his mother or Daughter in law and wife of the owner or Karta and grandmother of the minor child.
2. The property was owned by grand father of minor child. He or GF transferred the property in the name of her only surviving married daughter. GF was having three childern inclusive of one son, two daughters One daughter died in childhood. Son died an year before leaving behind his wife and minor kid. Now the surviving daughter by influencing and taking advantage of poor mental health of his father got all agricultural land and house transferred in her name after the death of her elder brother, with in about three months of death of her brother. All other movable property also got captured by her. Now this minor child and her mother are on the road without having a share of penny in their name.
3. After about 6 months of property transfer the grandfather also dies, it is suspected that he was actually murdered by the same daughter as he was staying with her only. The reason behind the death could be that at a stage it could have been proved that he was having poor mental health.
4. Ok now as stated earlier as grand father were 5 brothers they all got equal share from their father (great grand father of minor child) via one common registered WILL made in 1962 and the land transferred in their - all 5 brothers in year 1982 after death of their father.
5. This disputed transfer happens about a year back. in 2012 about two months after the death of father of minor son.
6. Grand father and his 4 brothers get their fathers or great grand father's ancestral property in equal shares on the basis of WILL by great grand father.
7. On record the partition has not been even done by all 5 brothers of course equal parts are in possession of each. And his part now in the possession with only surviving daughter.
I guess if I could put it more clearly to you. Please do ask if you still need any clarification.
8. I shall appreciate if you could reply to My one question - The definition of Coparcenary property?
9. Why every ancestral property is coparcenary but why ot the other way every coparcenary is ot ancestral. I want to understand this legal proposition.
10. A. ANOTHER SUBJECT - Succession Certificate - Is SC can only be used to claim immovable property or The post death payments or benefits (of govt employee as GPF, Gratuity, Ex gratia, GIS, DLI AND Family pension etc) are also released on the basis of succession certificate or legal heir or dependent certificate?
B. If a son is debarred by his parents can they claim these benefits being his parents
or successors against his minor son and surviving widow wife.
Thanks again & regards.
Legally who stands where?
Anirudh
(Expert) 24 January 2013
Please do not give here whatever that you know.
Please give one after the other in a chronological manner whatever information that I had asked.
balwinder s bains
(Querist) 24 January 2013
Please find my answers against your reproduced questions;
1. First state who owned the property in the beginning. How did he get the property (self earned or otherwise). - I mentioned he the grandfather of a affected kid owned the property. As I said he got from his father, who got it from his father being ancestral property. But in this case the property by his father was transferred on the basis of A WILL prepared in equal shares to all 5 brothers. Now I can write only this much in my opinion this is not self acquired property as he got from his father along with all his brothers and this was a ancestral with great grand father. Here this is the legal question, Is this a coparcenary property?
2. What happened to the owner - is he alive or dead. If not alive, in which year did he die? He died after about 6 moths of transfer of this property in the name of her lone married daughter. But he was having in the family surviving wife, daughter in law and minor grandson.
3. Who all [(wife, son(s), daughter(s)] survived him? - Wife, married daughter, daughter in law or widow of his son and grand son.
4. What was done to the property left behind by him. If partition was done, in which year it was done. Who got what share.
- He transferred all property in the name of her daughter nothing left back after his death.
R.K Nanda
(Expert) 24 January 2013
contact local lawyer as query too long.
balwinder s bains
(Querist) 24 January 2013
Thanks v much Adv. Nanda Sahib,
Yes I do agree that query is certainily too long. I shall appreciate if small could be resolved with your learned expertise.
1. What is the accurate legal definition of COPARCENARY Property?
2. What is the difference between coparcenary and ancestral property?
3. It is said that every ancestral property is a coparcenary property but each coparcenary property can't be ancestral property?
4. How can be proved or What evidence is required to prove a property in question is the coparcenary property?
5. Which is the most appropriate certificate to claim post death benefits of a deceased govt servant?
With many thanks and best regards,
Anirudh
(Expert) 25 January 2013
Dear Mr. Balwinder,
Again you have not given the relevant years for each of the events.
Anirudh
(Expert) 25 January 2013
In fact my question is how the great grand father got the property in the first place. What was the year in which he got the property in his hands.
balwinder s bains
(Querist) 25 January 2013
Dear Ashish
Thanks v much for your really impressive advise.
But I am amused to under stand that if there is no proper definition available of Coparcenary Property then how judiciously it can be established or proved. Simply at the convenience of any one's IQ levels?
Thanks & best regards,
balwinder s bains
(Querist) 25 January 2013
Dear Anirudh,
1. Your question - PART A. how the great grand father got the property in the first place. - He got it from his father. That is from great great grand father.
Part B.What was the year in which he got the property in his hands. - 1950s.
Thanks again.
Anirudh
(Expert) 25 January 2013
Dear Mr. Balwinder,
As you are aware every Hindu family is presumed to be a joint family. But there is no presumption that a Hindu joint family also possesses property.
However if the joint family possess property the same will be presumed to be joint family property. Those who claim it to be not a joint family property has to prove the same.
There is two species of coparcenary property - (i) ancestral and (ii) huf.
That is why it is said that "every ancestral property is coparcenary but every coparcenary is not ancestral."
The coparcenary property, prior to the coming into force of Hindu Succession Act, 1956 devolved by survivorship on the surviving coparcenars. (At that time only male child in the family was a coparcenar and female child did not enjoy that right). After the coming into force of HSA, 1956, any separate property [as opposed to coparcenary property (ancestral property)] though might have been owned by a father prior to 1956, but inherited by son after 1956 would be his personal property and not 'ancestral property'.
Having said this, according to me, the property which the great great grand father got in the 1950s is 'ancestral property' in his hand and it will continue to retains the said character, even after the coming into force of the Hindu Succession Act, 1956.
In your fact situation, you have said that the 5 brothers (sons of great grand father) got the property in the year 1962 by way of WILL.
I am little bit confused about this, as any coparcenary property cannot be given away by means of a WILL. Only personal property can be given away by means of a WILL. If it was a private property and given away by way of WILL, the said property in the hands of the person who received it will be his personal property and not 'ancestral property' (Coparcenary property) (unless it is expressly provided in the WILL that the property is to be treated as a coparcenary property).
balwinder s bains
(Querist) 25 January 2013
Mr. Anirudh,
So your view in this case is that:
(1) Grandson have no right after the death of his father to claim his share.
(2) Same position will stand for the grandmother of the child. As whole property gets transferred to his/her daughter.
(3) Is there any other rule or judgment / order of apex court which can help in getting their share of property back to them.
Thanks very much again for taking out plenty of time. Best regards.
balwinder s bains
(Querist) 25 January 2013
Ashish Jee,
I think almost entire back ground is detailed above. But you are absolutely correct in advising so. I certainly wanted to have open opinion to make up mind to have the clear path to follow having expected result in mind.I will follow your worthy advise.
Thanks v much again.
Regards,
Adv.R.P.Chugh
(Expert) 26 January 2013
I agree with learned seniors. This is something that baffles even the senior of all advocates. There is no precise definition.
Always understand coparcenory as a narrower body of people within a Joint Hindu Family (larger body) these people have birth right in the property. Coparcenory is a unit that holds together. Each coparcenar has the right to deal with his share as he likes. his share is known as Undivided Coparcenary Interest, and at any time can be culled out by a partition. Coparcenors also have a right to resist illegal alienation by karta. Coparcenors are people who have common sapindaship and are connected to last lineal male descendant uptil 4 degrees. SOns/Daughters etc.
Anirudh
(Expert) 26 January 2013
Dear Mr. Balwinder,
I said that according to me the property in the hands of great grand father was 'ancestral'. The property having attained the character of 'ancestral' prior to the coming into force of Hindu Succession Act, 1956, would continue to retain the said character even after HSA 1956.
That being so, the fact that the property has been given away by means of a WILL (which cannot be done if it was an ancestral property - but for the ignorance of the parties concerned and which may go against the claim of the property being 'ancestral'; and which it will be very difficult to question after half a century) is not understandable by me.
If it could be conclusively proved that the property in question is the same as that the great great grand father got in the 1950s, one can still make a honest try to claim it to be an ancestral property and set the things right. But, the biggest task would be in convincing the court that it was and is an ancestral property. Two things blur the otherwise crystal clear situation - (i) the WILL and (ii) the 5 decades that went by.
Anirudh
(Expert) 26 January 2013
Dear Mr. Bharat,
It is not correct to say that there is no precise definition of coparcenary.
I agree with the overall view of Mr. Ashish Davessar when he says that the concept of ancestral property under the Hindu Law has perplexed even the courts, which according to me has been said only to the limited extent of driving home the point to the querist, that in this question and answer interactive platform, it will be a little difficult to explain the concept. Nothing more nothing less.
