Bharath kumar (Consultant) 07 May 2013

Difference between ancestral(coparcenary) & selfacquired

We(the eldest son) is in the process of instituting a partition suit where 10 members are siblings(8 brothers[2 dead and issuless] and 4 sisters) and property owner(father) has expired long back.

There is an X acres of landed property that is in Owner(father's) name and there is a Y property that is in the 2nd Sons name(unmarried and died without issues) which are all part of the joint family property . There is a property Z which is in the name of 5 brothers which is all granted by the government(during 1970's and 80's). All the above property X,Y,Z belong to the Joint Family(hindu) property.

Now Since this property XYZ belongs to the joint family property, and a suit of partition for equal rights in all properties are in the process of institution ( asPlaint ). Some of the 3 younger brothers are threatening the elderst that they will include the property of the eldest son(self earned) also into the joint family property if in case a suit for partition is started by the eldest brother.

Eldest son had a property A in Bangalore and a home which he has gifted to his 1st son. and also there is an equal amount of property B which is in the name of (Eldest Son's) wife, which is gifted to 2nd Son 2 years back. So the property which is self earned by the Eldest son or his wife is all selfearned and has no support from any of his siblings during constrution or buying of the sites in Bangalore.

Out of Jealosy the 3 younger brothers are claiming to stop the suit for equal partition of Fathers ancestral property by claiming to include Eldest sons's sites in the joint family property(Note: self acquired property and also transferred to sons by way of Gift 2 years back).

Will the claim of the 3 younger brothers for a stake in Eldest Son( eldest brother of the 3 younger brothers) property which is already trasnferred to his Sons be legal. Is this permissible in the court to be counted as Joint Family Property.

Kindly respond.

Bharath.

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11 Replies

Adv Archana Deshmukh (Practicing Advocate) 07 May 2013

It would depend upon how the eldest son acquired the property. If it is his self acquired independent property and not thrown into the common hotch pot then, it cannot be counted as a joint family property.

Bharath kumar (Consultant) 07 May 2013

Madam,

Eldest Son was a Govt. Employee for 30+ yrs and a Gazetted officer. He had one Site and had constructed a small house in his own earnings. He has gifted this to his eldest son (2 yrs back). Will uncles have the right over the nephew's property now in the disguise of hindu joint family. Eldest son now doesnt have any property in his name

It is very clear that they are trying to scare away their elder brother and his sons from having a equal share in the actual ancestral property in their native place. What is the next step for us ?

Bharath kumar (Consultant) 07 May 2013

Also...

Also needs to add that Eldest Son(my father) on one side and my Mother(eldest son's wife) had 2 sites in her own name.(self acquired). One of the self acquired property(mother's) is a big site divided and distributed to sons some 16 yrs ago (registered through sale deed to sons) and the 2nd site was give away to my brother the 2nd son .So Father & Mother have together given away 2 sons 2 sites each out of which only one was in fathers name till 2 years back.

So can my Uncles come and claim my property(1st son) as joint family property ?

Adv k . mahesh (advocate) 07 May 2013

if the priperty owned by his self hard earned money then it is his own and he can give to any one

the law for Hindus,self acquired property is any property purchased by an individual from his resources or any property he acquired as a part of the division of any Ancestral/Coparcenary property or acquired as a legal heir or by any Testamentary document such as ‘Will’

Bharath kumar (Consultant) 07 May 2013

Madam,

In case of confusion in the kind of relationships used above making it more clear.

My Father was a Govt. Employee for 30+ yrs and a Gazetted officer. He had one Site and had constructed a small house in his own earnings. He has gifted this to me (2 yrs back). Will my uncles have the right over my property now in the disguise of hindu joint family.My father has anyway nothing in his name.

They(my uncles) are very clear that they are trying to scare away my Father and me from having a claim for equal share in the actual ancestral property in our native place. What is the next step for us ?

So in a nut shell Father had 1 site in his name and mother had one site in her name(both next to each other). During registration of sites from GPA they exchange the sites. So My father still had only 1 site in his name till 2 years back. My mother also had the adjoinig site in her name 2 years back which she gifted to my brother.

We within the family are united and have also shared the property(me and my brother) that belongs to my father + my mother.

Is there any room for my uncles to poke their legal nose in our property.

2 sites are in my name 2 sites are in my brothers name... no property in my father nor my mothers name.

But my uncles wants to include this in joint family . Is it permissible in law is this injustice permissible ???

Adv k . mahesh (advocate) 07 May 2013

as per your query except elders sons his legal heir will have legal right and he already given to them with registered deed and no uncle can claim from his self acquired property

as you said that he is a govt employee and he can show how he earned and how he constructed

Adv Archana Deshmukh (Practicing Advocate) 07 May 2013

@ Bharat,

Your uncles may scare you and your father, but it depends upon you whether to get scared or not. If they file any case then, you will have to prove that how the property was acquired by your father. Fight out the case properly and intelligently but no need to get scared about it. If they give you any legal notice in respect of partition then, give a proper reply to it.

Bharath kumar (Consultant) 07 May 2013

It is in my name now... not in my fathers name any more... My father nor my mother doesnt have any property left with them. can they include a property of a nephew(gifted by my father which is selfacquired) in the courts. will the court admit suct cases ???

Adv Archana Deshmukh (Practicing Advocate) 07 May 2013

@ Bharat,

The suit shall be admitted on the basis of what is pleaded by the plaintiff and nobody can predict here as to what will be pleaded if your uncles choose to file a suit. There is no bar to admission if it is shown as a joint family property. However, if it is done so then, you will have to fight out the case on merit.

Bharath kumar (Consultant) 07 May 2013

can the court also admit a property (vacant site , divided among me and my brother) which is my mothers self earned(her fathers side) and that we have purchased from her paying the right value according to the agreement in 1997 which is 16 yrs before... can the court even admit any property what so ever ??

Adv Archana Deshmukh (Practicing Advocate) 07 May 2013

I think you are confusing yourself in respect of admission of a suit and partition of property.. A suit is admitted for trial and not property. A suit for partition may contain discripttion of many properties claimed as joint family property, it is for the plaintiff to put up his case. If your property is included in it which you think is not a joint family property then, you are open to take objection in your reply.