Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Sandeep Gupta (Manager)     13 August 2021

Hindu succession act

Respected Sir,

I bought the property in 2006 from one family. In this case widow of the deceased son of that family now filed a case to demand partition alleging that the properties are ancestral & joint family properties of her father-in-law and she as a coparceners to the joint family properties is entitled for the share. Father-in law was died in 1998 and she married to the son after his death who subsequently died in 2008. 

I only know that daughter is given the right as a coparcener in 2005 but widow of the son can only seek her share as class-I legal heir in the ancestral & joint family properties. Can this case be valid and under which succession law the case will be decided to claim the share considering as coparcener.

I will be really thankful if legal advice is provide on the validity of the case  in legal view and can I file application under order VII rule 11 to reject this case.

 

Thanks and Regards,

Sandeep

 

 



 13 Replies

Dr J C Vashista (Lawyer)     14 August 2021

The property is stated to have been purchased in 2006 and objection raised in 2021, which is barred by limitation and suit is not maintainable.

SIVARAMAPRASAD KAPPAGANTU (Retired Manager)     14 August 2021

  1. You purchased the property in 2006. What were the documents based on which you have taken Legal Report and proceeded to purchase the property.
  2. Has the Daughter in law in the family filed a case impleading you as one of the defendants and if so what is the date of such case?

G.L.N. Prasad (Retired employee.)     14 August 2021

Contact a local advocate and defend the suit as this is the only alternative to an innocent buyer.  A widow can seek her husband's share in the intestate property of his father.  The presumption is that you are in the possession and enjoying the property.  She might have alleged that she has come to know of such alienation only recently to overcome the limitation period, and she must pay a court fee on market value if the property is in your possession.  Mostly such partition suit is to bring pressure or collusive for extorting money.  You have a good ground for defending the purchase as innocent purchaser, if you are not closely related to the family members.

Sandeep Gupta (Manager)     14 August 2021

Respected Sir,

Date of the case is year 21/03/2014 and she has alleged that the sale deed in 2006 is executed behind her back.. However, the partition between two family was done through the order of CMC (now under mahanagar palika) in year 2000-01 with the consent of her husband who died in 2008. The other family who became the owner of the one property and  thereafter were paying regular property tax and in possession and enjoyment of that property which is subsequently sold to me in 2006. This widow belongs to the other family and were in possession and enjoyment of the other property along with her family members after partition. 

She has suppressed all these details of partition and filed a case being joint family property and in Joint possession.

However, the Lower Court has rejected the case stating that she can not file a case alleging that she as a coparcener  to the joint family based upon uttam singh vs saubhag singh case law

She has filed an appeal in the Hight Court that the said order of the lower court is wrong and not applicable to the case.

My limited question was that can she file a case as coparcener to the ancestral joint family properties of her father-in -law being a widow of his son or the Lower Court order is still right in this case. 

This confusion has come in mind because during this case was pending in HC, in another judgement of Vineeta sharma vs Rakesh sharma SC held that the coparcenery continue after the death of person which is contradictory to uttam singh vs saubhag singh though this case was not under consideration in Vineeta sharma vs Rakesh sharma which was the for the rights of the daughter. 

I could not find in any law which has declare the widow as a copercener and to that extent is uttam singh vs saubhag singh case law correct. 

I will be really thankful if you can resolve this confusion if case law of uttam singh vs saubhag singh was right for this limited point that the widow can not file a case as coparcener. What would be the expected outcome of this case in the High Court with this background. 

I once again thanks and appreciate the time of all to provide valuable feedback .

Regards,

 

   

P. Venu (Advocate)     15 August 2021

The query is short of material facts. Further clarification only adds to the confusion.

Admittedly, you purchased to the family. The property belonged to the late father.

What was the father's title to the property? Was it self acquired or was he a coparcenor in ancestral property?

How is that the daughter-in-law is pleading that the property is ancestral?

Who were his legal heirs?

Subsequent to his death, was the property partitioned or held jointly by the legal heirs?

Was any partition deed executed and registered?

Who had executed the sale deed - all the legal heirs or some among them? If the latter, why?

Was the son a signatory? If not, why?

Who are the two families mentioned in the subsequent posting? Which is the other property? What is CMC?

Have been a party to the court proceedings? What is the stand of the other family members in the proceedings?

Please note that in suggesting any solution, facts are more important than citations.

Sandeep Gupta (Manager)     15 August 2021

Respected Venu Sir,

I fully agree with you that the facts are important and clarification will add more confusion with out full understanding on facts that's the reason my limited query was about the particular situation. 

These are not ancestral properties however the case is filed for partition stating that these are the ancestral properties.

In spite of the factual details I only wanted to know only one thing.

Case is not gone for evidence and cross examination stage. Lower Court has rejected the case under order VII Rule 11 saying that widow can not seek the partition alleging that she as a coparcener entitle to the share in the joint family properties.

Now appeal is pending in the High Court,

Now as per my understanding in the High Court the primary issue is to allow the appeal or dismiss it. If it is allowed then they have also to provide the reason why the order of the lower court is wrong and also provide the reason how widow can seek partition alleging as coparcener. only on this point what are the factual position of the Courts. Is their any precedence where widow can seek partition from her family as a coparcener after the death of her husband. There are brothers of her husband and mother-in-law also as defendant in the case.  

I will be really thankful to you if you can do explain the legal position w.r.t this point.   

Thanks and Regards

 

 

Anand Bali Adv. (Advocate Solicitor & Consultant)     15 August 2021

As per the Hindu Law If the Owner dies intestate all his first class legal heirs are considered as equal shareholders of the Properly left by the deceased. In Next prepositions if any the of First class legal heir dies before the such partition of the property his all first class legal heirs will be entitled to get their shares out of  his ought to be share. So in this case the entitlement of the widow of the one of the son's is there but not herself as Coparcener but as legal heir of the Coparcener who died i.e.  her husband.

 In this way in my opinion the Lower Court decision is correct and the High court shall also give its decision on the same line NOT considering her (Widow) as coparcener of the property.

The basis of the case raised is wrong.         

P. Venu (Advocate)     15 August 2021

What prevents you from posting the material facts instead of (mis)leading this platform abide by your diktat?

 

How is that the matter is in High Court? Is it a petition under Art. 227?

G.L.N. Prasad (Retired employee.)     15 August 2021

This is an appeal against lower court judgment.  The queriest states himself as an innocent buyer and appears to be more worried.  The queriest is not willing to answer as to where he is a relative or friend of the sellers and other relevant facts and is worried about whether the appeal will be admitted in HC or not. The following is the focus of queriest.

This widow belongs to the other family and were in possession and enjoyment of the other property along with her family members after partition.  She has suppressed all these details of partition and filed a case being joint family property and in Joint possession.

She has filed an appeal in the Hight Court that the said order of the lower court is wrong and not applicable to the case. My limited question was that can she file a case as coparcener to the ancestral joint family properties of her father-in -law being a widow of his son or the Lower Court order is still right in this case. 

Until and unless one goes through facts and law stated in lower court dismissal of partition suit, it is difficult to guide basing on citations.  Whether HC admits or not is not known to members and it is premature unless the judgment and appeal are studied thoroughly.
 

P. Venu (Advocate)     15 August 2021

I am afraid Learned friend Mr. Prasad has mistaken. There is no Judgment in the instant case, but only an Order rejecting the Plaint for want of cause of action. As such, there lies no scope for a regular appeal.

Moreover, it does not appear that High Court could be the appellate court at the first instance.

Sandeep Gupta (Manager)     15 August 2021

Respected Sir,

 

Nothing prevents me from providing details. I though it will unnecessarily occupy your time. Moreover it was little complex case but let me try explaining each fact of the case. I am not relative or related to any manner with seller but third party buyer.

  1. In this case X died intestate on 1998. He bought two properties A and B in year 1970 and 1980. Factually it was his self acquired properties.
  2. He had two wives. First wife had 4 sons and three daughters and second wife had one son and one daughter. Both wives were staying separately with their son’s and daughter’s. First wife in schedule ‘B’property and second wife in schedule ‘A’ property from decades even when X was alive.
  3. After his death Partition took place in 2000-01 and both of the family members gave their consent. It was not registered but though Mahanager Palika order after which kata was transferred. First wife and her family got property B and second wife got the property A. Both sides were in possession and enjoyment of their portion. Note: the daughters who were married did not come for consent all son’s and unmarried gave their consent.
  4. In 2006 second wife and her family sold the ‘A’ property to me.
  5. In Year 2014 one married daughter filed a case that it was her father’s joint family properties and he was looking after these properties as kertha. she and other defendants (both side family members herein) constitute a HUF and in joint possession of these properties. He died intestate in 1998 and she as a coparcener is entitled to her share. Note: Since I was a buyer of schedule ‘A’ property so I was also included as defendant. She did not bring any partition details in the plaint since she was not signatory.
  6. Both wives and her son’s filed WS stating that they were never in HUF and it was not the joint family property of X. they were staying separately after X married to second wife. Moreover the properties were divided between both wives and her family after the death of X.
  7. I also filed all the details including the partition details with certified copies of the Municipal order copy when partition took place and katha on the name of these wives.
  8. End of 2014, I filed one I.A. stating that the schedule properties are self acquired and court fee paid in insufficient since in one para of the plaint it was mentioned that X bough these properties from vendor in year 1970 and 1980.
  9. Same year Court rejected my I.A. concluding that the plaintiff filed case for separate partition from her joint family property hence court fee paid is sufficient.
  10. Case continued, in year 2016 I filed another I.A under order VII Rule 11. based upon the Prakesh and Phulavati case that since father died in 1998 as mention in plaint she is not entitled for her share hence plaint is barred by law.
  11. In this case widow and minor daughter of the one son (who died in 2008) of first wife had also filed counter claim by admitting to all the statements of plaint and further stated that “The schedule properties are ancestral and joint family property and the defendant no. 4 and 4(a) (Appellants herein) are entitle for 1/8th share partition over schedule property i.e. at par with the plaintiff and other defendants, as they are also the coparcener to the joint family properties of the plaintiff and defendant no. 1 to 9.” They also prayed to court to allocate independent possession of their share.
  12. This counter claim was filed behind my back and was not within my knowledge and they hardly appeared in any proceedings. Not even for the first I.A. which was filed by me for insufficient fee where it could have come to my notice.
  13. When I filed the second I.A. as mentioned in the para no 10, this widow filed an objection just before the argument for the I.A.. At that  point of time it came to the notice that such counter claim was filed.
  14. In Jan 2017 Court passed an order rejecting the plaint based upon Prakesh and Phulavathi case and also counter claim, suo-motu, holding that “law reported in (2016) 4 Supreme Court Cases 68 in the case of Uttam V/s Saubhag Singh and others, it is held by the Hon’ble Supreme Court as follows:- “Family and Personal Laws[1]Hindu Succession Act, 1956 – Inspite of the same,.6 proviso(as it stood prior to amendment in 2005), 8,4,19 and 30-Succession to joint family property prior to 2005 amendment – Principles O.S. No.2339/2014 8 summarized – When male Hindu, having interest in Mitakshara coparcenary property, died intestate after commencement of HSA, leaving behind a Class I female heir(his widow in present case) and sons, then by operation of proviso to S.6 deceased’s interest in coparcenary property would devolve by intestate succession under S.8 and not by survivorship u S.6 – After devolution of joint family property as per S.8 HAS upon death of male Hindu intestate, property would cease to be joint family property and said female heir and other coparceners succeeding to the same would hold their respective share in property as tenants-in[1]common and not as joint tenants – Therefore, grandson born after death of the male Hindu cannot maintain suit for partition claiming his share by division of alleged joint family property.”
  15. Now in 2017 plaintiff filed an appeal (RFA) in the HC by taking contradictory stand that lower court order is wrong and she has filed a case on the ground that the schedule properties are the self acquired properties of her father. She has cleverly filed an appeal removing all those wording which was placed in the plaint such as joint family property of father and they are in HUF and coparcener etc.
  16. The widow and her daughter also filed another appeal (RFA) stating that the lower court order is not applicable to them and the lower court has not consider their counter claim. Note: they have not changed their stand for the nature of the properties as plaintiff has done in her appeal.
  17. Note: During the pendency of the RFA in HC, SC has also concluded Veenita Sharma and Rakesh Sharma case in which date of death of father is considered as immaterial and recognized the partition which is on public records and partition is evinced.
  18. I filed my separate WS in the high court mentioning below important points for the main case
  1. What was the case of the plaintiff in lower court and the public records of the partition and thereafter evidenced to prove separate possession and enjoiment of the Schedule A’ property in the hand of second wife and her family.
  2. Contradictory stand and she is bringing new ground by cleverly drafting the appeal which was never before the Lower court hence appeal is to be dismissed at threshold
  3. Neither the Lower Court has jurisdiction to try this case on new ground by overruling its own earlier judgment nor this appeal can be entertained on different cause of action to setup a new case which was not the subject matter before the Lower Court and when I.A. No. 4 (for Court fee) had already been decided in 2015 and reached to its finality.
  1.  For the other RFA which was filed by widow I have filed one I.A. in HC stating that the counter claim is filed behind my back which was not within the knowledge and it is against my property ho is a bonafide purchaser where plaintiff is nowhere associated hence counter claim is not maintainable under the perview of 6A to 6G.
  2. I wanted to file the WS with below points which is not yet filed. Hence my query was only limited to only one point.
  1. Properties are not Ancestral Joint family properties.
  2. Lower Court order is right that widow cannot file a case alleging as coparcener to joint family properties of her fathers-in-law.
  3. Partition is done in 2000-01 with the consent of her husband and she was neither the coparcener nor the class 1 legal hire when partition took place.
  4. Daughter also does not get any right since partition is on public record and finally evince

 

This is the stage of the case as of now. Hope this will clarify the facts of the case. in case you have any further query I will clarify.

P. Venu (Advocate)     15 August 2021

You are to provide the information as to who all had signed the sale deed?

 

Moreover, what are the Case Numbers? Which Court? Which High Court?

Sandeep Gupta (Manager)     15 August 2021

Sale deed is signed by the second wife and her son and daughter who were in the possession of the property after partition.

it is in the HC of Karnataka Bangalore. 

RFA 548/2017 and  RFA 401


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query