Lalit Barik (.) 10 March 2013

Separate joint familiy property and ancestral property

My father had some self acquired property and had relinquished his rights over his ancestral property in favour of his 2 younger brothers, though not in writing. There was some self acquired property in the name of my mother also. My father died in the year 2003 and my mother also passed away in 2007 without leaving behind any will. We are 2 brothers and 3 daughters and I am the youngest son. I have filled a partition civil suit under the Hindu Law of Partition demanding my share in the self acquired properties of my parents. I am not interested in any share from the ancestral property of my father as my father's share would be very little to be of any value after repartition among his wards. My 3 elder sisters are supporting me fully as my elder brother is not in good terms with them. My elder brother is not agreeing to the partition and has now filed an affidavit in the court denying my father's relinquishment of his rights over the ancestral property. He is demanding that ALL property of my parents (self acquired as well as ancestral) should be placed in the hotchpot before partitioning. The problem is that the said ancestral property has not been mutated since 4 generations and my elder brother is using that to linger the matter and cause delay in partition. Is there any law/bylaw etc. which I can use to separate the ancestral property from the self acquired property and demand that the self acquired properties of my parents should be partitioned separate from the ancestral property of my father? Till now, my sisters have not replied to the summons served to them and are set exparte. Should they file their replies or remain exparte?

Lalit Kumar Barik

Odisha

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Advocate M.Bhadra 10 March 2013

Ancestral property of a Hindu Family as explained by me is based on the Principle of Hindu law followed by the Supreme Court of India well propounded in Hindu Law by Mulla.
Previous to 2005 Amendment in the Hindu Succession Act,1956,
The Ancestral property also called Copacenary property, wherein all the male members of the Joint Hindu family were called Copaceners, the female members were enjoying the right to maintenance in such Hindu Family but not to share the right in the Hindu Family Property.
Wherever there was division of the Joint Hindu Family property or the Ancestral Property or the Copacenary property, only the male Copaceners were entailed to get share in the property not female members, after the 2005 amendment, the daughters borne in any such Joint Hindu Family will be also entitled to get equal share as the sons, in other words daughters too will be considered Copaneners of the Joint Hindu Family entitled to equal share as the sons the male Copaceners.
The four generation rule for considering a property as Ancestral or Copacenary is not made by me but that exist from time immemorial, well followed by the Indian courts.
The self acquired property of the grand father on his death without leaving a 'Will' devolves to his Class 1 Heir who in this case will be his widow, all his sons & all his daughters, in case any of his son or daughter died before his death, then the legal heir of the predeceased son or daughter will get the share which the predeceased son or daughter would have got.
The grand daughter of the grand father shall be entiled to get share of her predeceased father only, if the father is alive then she is not entiled to any share.
As far the division of the Ancestral/Copacenar property is concerned that can be sought anytime by any of the Copacener of the Joint Family.
The daughter being one of the Hindu Copacenar can now seek division of the ancestral/copacenary property as any son anytime during her lifetime.
The claim is executable at the time of partition of the ancestral/copacenary property in question, why wait for death of the father who himself is also one of the copacenar entiled to only one share as the daughter.

(Guest)

(1) My father had some self aquired property and had relinquished his rights over his ancestral property in favour of his 2 younger brothers, though not in writing.

COMMENT: If your uncles have occupied shares in the ancestral property excluding your father since the alleged oral relinquishment by your father, and if minimum 20 years have been passed, then by the effect of Law of Easement your uncles will be considered owners of their respective shares and the alleged relinquishment by your father will be deemed to have taken place. But if your uncles have never occupied any share in ancestral property and the ancestral property is unpartitioned, then the unwritten relinquishment in favour of your uncles, has no meaning. All heirs of your father including you, can still demand your father's share for partition among yourselves.

(2) There was some self aquired property in the name of my mother also. My father died in the year 2003 and my mother also passed away in 2007 without leaving behind any will.

COMMENT: As both your father and mother died intestate, all heirs should get equal shares of self-acquired properties of your parents.

(3) We are 2 brothers and 3 daughters and I am the youngest son. I have filled a partition civil suit under the Hindu Law of partition demanding my share in the self acquired properties of my parents.

COMMENT: All heirs can rightfully seek partition of self-acquired properties of your parents on their dying intestate, you are also among heirs of your parents.

(4) I am not interested in any share from the ancestral property of my father as my father's share would be very little to be of any value after repartition among his wards.

COMMENT: Mentioning that, you are not interested in the ancestral property is not necessary for the partition suit.

(5) My 3 elder sisters are supporting me fully as my elder brother is not in good terms with them. My elder brother is not agreeing to the partition and has now filed an affidavit in the court denying my father's relinquishment of his rights over the ancestral property. He is demanding that ALL property of my parents (self acquired as well as ancestral) should be placed in the hotchpot before partitioning.

COMMENT: There is NO LAW making it mandatory that all properties (self-acquired+ancestral) of a Hindu Male/Female dying intestate, should first be joined then partitioned. Therefore even if your elder brother succeeds in establishing that your father had never relinquished his rights in the ancestral property, still your father's self-acquired property can be partitioned separately among his heirs. If one of heirs dissent to partition, property can still be partitioned. Your father's share in ancestral property can be alienated later for partition. So, your elder brother's demand for joining all your father's properties first, has no value. Your father never got his share in the ancestral property, so that share cannot be included in his current properties.

(6) The problem is that the said ancestral property has not been mutated since 4 generations and my elder brother is using that to linger the matter and cause delay in partition.

COMMENT: The ancestral property should have been mutated at earliest possible opportunity, but in partition of self-acquired property of your father it is not an obstacle. As the ancestral property can be separately partitioned, it can be mutated just before it's partition.

(7) (i) Is there any law/bylaw etc. which I can use to separate the ancestral property from the self acquired property and demand that the self acquired properties of my parents should be partitioned separate from the ancestral property of my father?

COMMENT: Self-acquired properties of a Hindu Male/Female dying intestate, can be partitioned independently of his/her share in any ancestral properties. Therefore, you don't have to specifically demand for it.

(7)(ii) Till now, my sisters have not replied to the summons served to them and are set exparte. Should they file their replies or remain exparte?

COMMENT: You can succeed in your partition suit and if your elder brother contended his demand in this partition suit then I don't think his demand will be taken into account by the court but you can argue against his demand according to what I explained. If your sisters have been served summons in the same suit, they should file their replies. A separate suit for demanding that first all properties should be joined (should be placed in the hotchpot), is not maintainable.

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Lalit Barik (.) 13 March 2013

Thanks for the replies to the questions asked.

I discussed the replies with my advocate regarding the matter to separate the self-acquired property from ancestral property. But I am sorry to inform that my advocate is not agreement with the replies given by Sri Sandeep Naik. He is insisting that for a partition we HAVE to put ALL properties of my parents in the hotchpot before partitioning and asking ME to provide him with legal precedence/judgements in support of the views given bt Sri Sandeep Naik!! When I tried to explain and discuss the matter with him I was rebuked!!! Please suggest me ways to proceed further.

Lalit Kumar Barik

Odisha

Lalit Barik (.) 02 April 2013

I was trying to approach my case/situation differently and would like hear opinions from other members.

Let us consider a hypothetical situation. A person (hindu) has 5 heirs and is owner of 7 different properties (for simplicity let us assume 7 pieces of land at different places, of different sizes and of different market values). The person dies intestate and the time comes for partition of the properties among 5 heirs. Each heir is entitled to an equal share of the 7 properties. But one of the heirs (H1) declares that he is not interested in an equal share but would be satisfied with 1/5th share of a single property only. Mind you, he is NOT asking that he be given a specific property in entirety of his choice (out of 7 properties available, which might be equal or more to 1/5th of total proprty value). He is saying that he only wants 1/5th share of a specific property. The rest of the properties may be partitioned among the other 4 heirs equally and he would not object to it.

Now, what does the law say here? Commonsense tells me that since H1 is only asking for an equal share on only a part of total property, he is not demanding an unjust share. And the other heirs can also make similar demands for the partition. But does the law agree with it??

Please spare a moment to give a thought to the above hypothetical situation and share your opinions.

Thank you.