sale deed


My father has executed  registered sale deed in 2002 with a person , but it is our ancestral property and purchaser hasn't take any permission of my family member or sign of any family member except father and purchaser didn't give any paper notice and not also by revenue officer. My father had alcohol addicted so he took advantage of it and executed sale deed  and not given any money to father.

   Has my father any right to execute sale deed? Or is there any chance to recover the land.

Which type of suit can I file? 

 
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Advocate

On what basis you say that the property is 'Ancestral'.?

Unless the property is 'Ancestral' the very basis of your objection and future course of action will be lost.

Therefore, you have to come out with details about the property, like when it was purchased; who purchased; in which year it was purchased and then how it went from one person to another person including the years in which such transaction took place.

Without the above information, it is not at all possible to give a very clear and definite answer to your query.

 
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FIN

Which personal law applies in your case?

Or are you all Hindu?

Is your father alive?

Confirm!

 
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FIN

Ancestral Property; that is four generation old……………..Or any property acquired by the Hindu great grand father, which then passes undivided down the next three generations up to the present generation of great grand son/daughter.

Self acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in common.

Hope you have got the matter duly checked by your own very able LOCAL senior counsel of unshakable repute and integrity specializing in succession/civil matters  and well versed with latest citations, LOCAL applicable rules/laws/personal laws… and having successful track record…. and worth his/her salt…..and shown the said sale deed, mutation records with all link docs etc etc

Check at LOCAL civil courts, HC,SC..for such counsels..

Has your own counsel opined that the said property is ancestral (Pushtaini)?

Your counsel must have also opined that your father could not dispose more than his share IF property was ancestral……………….and that if you were minor at the time of sale in year 2002, then you could agitate within 3Y of attaining majority……………….and also the recourses that you can pursue, even if the period of 3Y is lapsed.

 
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Yes I am from Hindu family and my father is alive and at the time of sale me and also my younger brother was minor.

  It is our ancestral property from great grandfather . But it is comes to us from dividation between uncle and father. 

 
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Advocate

Any ancestral property duly divided on the basis of a partition deed, family settlement or release deed will lose its ancestral character. The Supreme Court has delivered a judgment in 2016 clarifying this issue.

If a division of the ancestral property takes place, the share which each one gets after the division will become his or her self-acquired property.

 
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Advocate

Mr. Rajasekharan, I am afraid.  The ancestral property will never loose its character, unless the person who gets is ultimately is a bachelor and dies a bachelor.

I shall be grateful if you could cite the SC decision in which the SC has held that "Any ancestral property duly divided on the basis of a partition deed, family settlement or release deed will lose its ancestral character." 


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Advocate

Kindly see the judgement at https://indiankanoon.org/doc/21722097/

 
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Advocate

For easier and quick reading, let me provide a link to a write up, though not an authentic one as a case law, on ancestral property carried out by the Times of India in its Business section late last year, at

https://timesofindia.indiatimes.com/business/india-business/11-facts-about-ancestral-property-you-must-know/articleshow/61684720.cms

 
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Advocate

Dear Mr. Rajasekharan,

Thanks for giving reference of the SC decision.

This decision is completely wrong (notwithstanding that it has been rendered by SC) based on wrong understanding of and mixing and confusing the provisions of Hindu Succession Act, 1956.

For instance, it is not in dispute that the property in question to begin with was Ancestral.  Therefore, all the male members (at the relevant point of time as it is prior to coming into force of HS (Amendment) Act, 2005) are co-parceners.  The grandson being within the 4 generations of male members is WITHOUT DOUBT A CO-PARCENER AND has every right to ask for partition of the property - even when the Grandfather/Father is alive.

Now, first reading Section 6 and 30 of the HSA.

As per Sec. 6, Upon death of a Male co-parcener, having interest in co-parcenary properlty, has to devolve on survivorship  and not as per provisions of HSA, 1956.

First exception:  If the said male had left behind any class-I female heirs (mother, wife, daughter etc.,) then the deceased co-parcener's interest in the property shall devolve NOT BY SURVIVORSHIP, but either by his TESTAMENTARY DISPOSITION or intestate Succession, as the case may be.

The Testamentary disposition mentioned in First proviso to Section 6 has connection to the Sec. 30 of the HSA, under which a co-parcener can dispose of his interest thorugh testamentary disposition.

Therefore, upon death of the male co-parcener, there will be a NOTIONAL partition of the property.  The share that falls to the portion of the deceased co-parcener who has left behind Class-I female heirs will go either by way of (i) Testamentary disposition or (ii) Intestate Succession.  IN SUCH CASE, only the portion of the property of the deceased co-parcener loses its co-parcenary character as the same is either goes by way of Testamentary disposition or by way of inheritence - and the property in the hands of the beneficiaries will be their personal properties (no more having the character of the co-parcenary).

However, just because a NOTIONAL Partition had taken place, it does not automatically mean that the remaining co-parcenary property (not falling to the share of the deceased co-parcener) will cease to be of co-parcenary character or that the remaining property also should be partitioned then there.  In fact, if the remaining co-parceners desired to continue jointly, they may do so.  THIS IS WHAT HAD HAPPENED IN THE CASE IN QUESTION - as has been repeatedly stated by all the 4 brothers (i.e. father of the plaintiflf and his uncles) that no partition had taken place**.  In any case, the plaintiff, being the grandson of the deceased is definitely a co-parcener as far as the remaining property is concerned.

Therefore to say that the grandson is not entitled to ask for partition, or that the property has lost co-parcenary character is completely WRONG.

**Even if the partition had taken place between the 4 brothers (i.e. between the plaintiff's father and his three uncles) still it will be coparcenary property in the hands of his father qua the children and as such the plaintiff has every right to ask for partition.

To say the least, even at the level of SC, the hindu Mitakshara law has not been properly understood, and a number of wrong decisions are being rendered from time to time.  The decision mentioned by you is also one amongst such wrong decisions.


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