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Sandeep Shukla (Teacher)     09 February 2015

Case concerning rights for married women

5 brothers had done a partially oral and partially written family arrangement for immovable  property obtained from their father(self acquired by father)  in West Bengal, and staying so in such demarcated portions for long (30+ years). They have also created a HUF. There was a Will of their father which was not probated due to many imposed restrictions on the heirs but property was allotted more or less on the basis on the divisions proposed in the Will. There has been also no objections to this arrangement for so long. One of the 5 brothers is succeeded by one son and one daughter after his intestate death in Feb, 2004.

Now this daughter after the death of her father has forcibly occupied the majority of the portions falling under her father's allotments thereby leaving very little space. for her brother. Though some other heirs have started  partition cases  asking for equal division now disputing previously done arrangement, both the son and the daughter do not support this partition case as they stand to loose if the long standing agreement is disturbed. 

The daughter is saying that she will indefinitely continue the cases if required and so her brother then will also be indefinitely stuck up in his small quarters and will not get his due share to enjoy. Subsequently the daughter has also married in 2013 and has kept all these spaces locked up in her parental abode since then, and now residing exclusively at her in-laws. 

My questions are:

1. Is the daughters actions legal? Can a married women leave quarters locked up in her parental abode which is a HUF property in WB and deny access to her brother?

Please note that father died in 2004 before Hindu succession amendment act, 2005.

2. Can the brother ask for mesne profit from the sister for any illegal and forceful possession? 

3. What is the correct way to approach the court for relief, considering the legal situations currently ongoing? Please note that the son/brother do not want a partition case but just to stay in his father's allotments in as much as is allowed by law. 


 1 Replies

Swastik Nath (Freelance Lawyer)     11 March 2015

note :

1)Considering that the will of the father of 5 brothers is executed and all 5 got equal shares of the property.

2)The 5th brother passed away leaving behind only 2 children(in this case a son and a daughter)

Answer to your question:

1)YES. A daughter has equal share in the property of the father as the son, where father dies intesate i.e has not made a gift deed to someone else or just the son , or hasn't made a will in favour of only son.Though its HUF the property is said to have been demarcated long ago.

She has right of her property of equal share as her brother.

Note: hindu succession act applies to women born before the act was amended. so it applies to her also.

2) If the sister has occupied more than her share then the brother can fight for his share and ask compensation for using his share for the said period.

3)the brother has to apply for partition by approaching court and filing a suit. or come to terms with sister and separate the property

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