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Sandeep Gupta (Manager)     18 October 2014

Query about recent judgment of bombay high court on hindu su

This is regarding the applicability of daughter’s rights according to Hindu succession act 2005 after recent judgment of Bombay high court on 14 aug 2014 by bench of MOHIT S. SHAH, C.J.  I wanted to know for my case.

Highlights of the case:

1.       1. Daughter is married in 1993 even before Karnataka amendment which came in year 1994 which excludes the married daughter who got married before the amendment.

2.       2. Father died in 1998 and had two properties (self acquired).

3.      3.  He had two wives and property was divided between two wives with the consent of all the family members including unmarried daughters and all mail heirs in year 2001 according to Karnataka amendment act. Katha is transferred accordingly for one property on the name of first wife and other property on the name of other wife. Record s are available in municipal corporation.  

4.       4. New act of Hindu succession act came in 2005 which was completely confusing.  

5.      5.  Second wife sold her property in 2006 to third party (Me in this case) with the consent of her children’s.

6.      6.  Now in March, 2014 daughter who got married in 1993 of other wife filed a case calming share in the property which was sold to me.

Judgment of Bombay high court according to my understanding says

1.       1. Case of a Hindu, who died prior to 9 September 2005 continues to be governed by pre-amended Section.

2.       2. It is only where an oral partition or partition by unregistered document is not followed by partition by metes and bounds, evidenced by entries in the public records that a daughter would be in a position to contend that the property still remains coparcenary property on the date of coming into force of the Amendment Act.

Is my understanding correct and also let me know in the above case where property is already divided and evidenced by records in corporation, property was also self acquired property of father who died in 1998. What would be the appropriate action so that case will be dismissed early because I am running in a loss of huge amount?

How I should claim my losses from the other party?

Please advice

 

Thanks in advance



 2 Replies

T. Kalaiselvan, Advocate (Advocate)     20 October 2014

In this case, it is very clear that:

1) the daughter was married in the year 1993, i.e., well before the Karnataka state amendment to HSA came into force;

2) The property was duly partitioned after obtaining consent from all the legal heirs in the year 2001 and proper mutation also took place, i.e., very well before 13 years from this date;

3) The property has been alienated further by executing a sale deed in favor of a third party i he year 2006 which fact was known to the present litigant;

The above clearly indicates that the daughter has no rights to claim a share out of the ancestral property.

However in your case in hand, the property was self acquired property of he deceased who left it intestate at his death.  An intestate property will devolve equally upon all the legal heirs and when a legal heir wants to relinquish her/his right of share, he/she may execute a registered release deed in favor of the beneficiary within the family members accordingly.    Here the intestate property was partitioned between two wives without observing the necessary legal formalities as stated above, especially the daughter who claims a share now has not given her consent to relinquish her rights in favor of her mother or step mother, therefore she is very much eligible for a share in the property as on this date.  a partition suit can be filed at any time and the adverse possession clause will not be operative for partition suits.  Therefore she is entitled for her legitimate share in the property, hence you discuss with your lawyer on further issues.

Sandeep Gupta (Manager)     01 November 2014

 Sir,

Thanks for your kind advice on the above matter. Yes it was a self aquired property of the father and she have the right to claim over the property. I have following questions.

1. Is this suit is not barred by the law of limitations?  Father died in 1998 and in 2001 it was divided between two wives. The property which I bought was given on lease by the wife who sold the property to me. This was not known to me at the time of purchase. Later I have vacated the same property by paying the lease amount. in 2008. I have also filed criminal case and civil case to recover the money against that wife and legal heir which was settled in year 2012. But the family of other wife was not involved in the case. it was only the family who sold property to me and her children.

2. The old house on the property was demolished in 2008 by me and trespasser board was placed in year 2008 and I have the photograph of trespasser board and the proofs that structure was demolished in 2008.

3. Daughter of other wife who is claiming the rights over the property stay in her small house opposite to the same property which was sold to me.

4. In year 2014 after 17 years of the death of father, can she claim over the property with all these incidents happened in the past? Will this case not be barred by law of limitation or what could be other possibilities left for me to defend?  How serious court consider the law of limitations.

5. How much approx court fee she has to pay in the court. Property is in Bangalore and the Guidance value of the property is 2400/sq ft and market value is 4000/sq ft. she is claiming 1/8 share in the overall property A and B which is around 2500 sq ft.

I would appreciate if you can reply at least the above points in detail to give me some confidence in the above matter where I stand and what could be the outcome of the matter?

Thanks and Regards,

Sandeep


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