SAHIL GOYAL (STUDENT) 08 February 2014

Family property dispute

I HAVE A PROBLEM REGARDING OUR FAMILY PROPERT DISPUTE. WOULD ANYONE HERE WOULD HELP ME OUT REGARDING FOLLOWING PROBLEM?

My Great Grandfather named "CR" purchased a property in HARYANA and transferred that property to my grandfather named "DC" by a degree, during his lifetime. My grandfather started his business on his firm. My Grandfather has 3 sons. He partnershiped with his youngest son named "K", but not on papers. Hence propriter of the firm is my grandfather "DC". Also, my grandfather "DC" is illiterate but he can sign in his hindi. His son K created a new firm "K enterprises" and started to do the business in his own firm. The payment which was recieved from business of my grandfather DC was directly recieved in account of "K enterprises" and then transferred by check to account of my grandfather DC's firm. Then K took signatures of my grandfather on SELF check of DC's firm and withdrew the money and consumed it himself. By this method he show a loan of about 55 lacs on my grandfather "DC". All this he did so that my grandfather couldn't transfer that property to his other sons. That property has market value of about 90 lacs. My grandfather want to transfer that property to his other two sons as he served a lot to his youngest son K and he regret that.My grandfather shifted to DELHI to reside with his other two sons. Hence the property is in possession of his youngest son "K"

Is there any remedy possible, to other two sons of my grandfather, if my grandfather transfer the property by degree to other two sons during his lifetime? or can they claim it after the death of my grandfather on the basis of that degree?

Is there any remedy available to two sons, so that the proceedings can be initiated at court of DELHI if they file any case(i.e. cheating , or undue influence) at starting.. as my grandfather also now resides at DELHI with his other two sons.?

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Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 ) 08 February 2014

Property inherited upto 4 generations of male lineage (i.e., father, grand father, etc.) is called as ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.Section 6: In order to give rights to daughters, the act introduced a legal fiction of ‘notional partition’ whereby when a male Hindu dies after the commencement of the act, (leaving behind female relatives and without executing a will) his share in thecoparcenary property is deemed to have been divided at the time of his death, whether actual partition has taken place or not.

a) This means that if a family consists of a father, mother, two sons and a daughter, the share of the father at the time of death, after notional partition would have been 1/4^th share in ancestral property. This is because each of the sons take one share (as coparceners), the wife takes one share and the father takes one share as per the rules of old Hindu law (and as per judicial pronouncements which have interpreted and enlarged the scope of the Hindu Succession Act).

b) The share belonging to the father is then again sub - divided equally between all the heirs, i.e., mother, sons and daughter. This 1/4^th share goes out of the co-parcenary property for all times. Thus the sons apart from inheriting 1/4^th share ascoparceners in their own right, also inherit a small share in their individual capacity from the divided share of their father. The share inherited by the mother and daughter also goes out of the coparcenary property. There are conflicting judgments on whether the shares of the sons are to be treated as coparcenary properties or not after partition, by the different high courts and supreme court.

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