• Hindu Succession Amendment Act 2005

Hello Sir,
I recently booked flat in Bangalore. I was planning to register in couple of days. A week before 1/dec/2014 , lady filed petition claiming share and for stay order on construction and selling flats.
Petitioner apparently is sister of previous land owner from whom current land owner bought land in 1993/94. Now that flats are ready for registration she filed petition while she did not speak for 20 years. In fact construction is going on from last 2 years. 
Court has not given stay order yet. 
I wanted to know what's merit of case and does it stand valid?
Asked 2 years ago in Civil Law from Bangalore, Karnataka
Dear Querist
If she is the sister of  the owner and have any share in the property then she may get her share file an application for implead the necessary party in this cade and claim your money or registration. 

Contact a lawyer personally in your area or contact us on phone or mail.
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
1) before purchase of flat you must carry out title search of property for around 30 years . 

2) obtain certificate from lawyer that title is clear and marketable and free from encumberances 

3) you have not mentioned whether said property was self acquired or ancestral property of the seller .

4)if the property  had been sold without consent of the sister and she had share in the property she can definitely file suit to set aside sale deed made in favour of builder .

5)the delay of 20 years in filing suit proceedings would have to be explained by her . 

6) dont take any hasty decision . consult a local lawyer . the suit filed by the lady will have to be perused to advice further
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1) even if sister had married before 1990 she would have share in father property . 

2) as mentioned earlier need complete details of suit proceedings  to advice  .
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
Women's right to ancestral property is granted vide an amendment to Hindu succession act (act 1 of 1990) with retrospective effect from 22-03-1989.  As per the amendment any women who had married prior to amendment act of 1 of 1990 i.e, 22-03-1989, then she is not entitled for any right of share in the ancestral property.  Whereas if her marriage is after 22-03-1989 she is definitely entitled for a share in the property.
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1) after passing of Hindu Succession act 1956 daughter has equal share with her brothers and mother in the self acquired property of father .

2) if daughter has not been given share in father property she can  move court  for setting aside sale deed 

3) we dont know on what basis SBI has opined that title is clear and marketable . 

4) ask the builder to furnish you inspection and copy of of suit proceedings filed by daughter 

5) consult a local lawyer
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
Hi, it is normal clause even tough the title is clear for various reason some time litigation will start then it is the duty of the owner to take responsible for clearing the case.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1) i had already advised you to ask for inspection of legal proceedings taken by sister of original owner before taking any decision . 

2) how much money have you paid the builder? what is balance amount payable by you ?

3) if builder is willing to give you refund of money paid with interest take the money
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1) you can obtain copy of the proceedings from the court if builder is refusing to furnish you copy of the same 

2) builder is legally bound to offer you inspection of any suit proceedings filed in respect of the property . 

3)you can issue legal notice to builder to refund you money paid with interest . 

4)if builder refuses to do so you can move consumer forum against the builder and seek refund of money paid with interest and also seek compensation . 

5)if after taking inspection of documents you dont find any legal merit in the suit filed by sister you can go ahead and register  the agreement with builder
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
A. As per the state amendment introduced by the Karnataka in 1994, if the women got the marriage before 1994, she will not have any share over the property. But  in the year 2005, the Hindu Succession Act was amended and overruled the state amendments. So women can claim a share over the ancestral or joint family property as coparceners by birth.

B. Mere the SBI given green signal over the property is not perfect title, usually the bank will ponder over the interest, create a charge over the property and the bank has obtained all securities from the customer at the time of sanction loan. The third party claim's clause is a general clause in all agreements. Even though not mentioned this clause that the owners have a bounden duty to resolve the matter as per law

C. In your case, this matter would be settled out of the court by offering some flats to that lady by the builder side and the same damages should be recover the same from the previous land owners under the indemnity clause, In Bangalore, this is  normal practice going on and also settled by giving consideration or offering the flats.

D. You can approach the builder to refund the amount  or insist to resolve the matter by offering some flats to that lady or approach the Consumer Forum to resolve this matter.
B.T. Ravi
Advocate, Bangalore
736 Answers
29 Consultations
5.0 on 5.0
Dear Querist
if the owner of the property is father of the petitioner then only the case will be maintainable, if she is the sister of the owner then her case is not maintainable in the eyes of law. the Girl may claim only the share from her father's property if the father died intestate(without any will) or from ancestral property.
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
1) daughter would have equal share in self acquired property of her father . 

2) in the present case if it was self acquired property of her father she  would have 1/4th share in property . 


3) admittedly daughter has not received any consideration nor has she signed the agreement for sale of her father property 

4) better get issue resolved before proceeding with registration
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1) the petitioner has to explain what she was doing for 20 years . when was the fraud discovered by her ? she can move court within period of 3 years from date of discovery of fraud by her family members . 

2) if the court grants an injunction restraining further construction and creation of third party rights pending hearing and final disposal of the suit all purchasers would be affected 

3) in respect of self acquired property of father daughter has equal right as per Hindu succession Act 1956 . her  date of marriage is immaterial .
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
you may fight the case on merit after be a necessary party in the court which is pending.
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
1. If the petitioner is the legal heir of the owner of the  said land, then she can very well claim share in the said land,


2. If she can establsih that the said property is not self acquired by its seller and has been inherited and his sister also has equal share in it, then she can pray for setting aside all the sales including the sale of the flats constructed on the said land,

3. It is important to know whether the said land was self acquired or inherited by its seller,

4. If it is not self acquired by him then buying the flat on the said land is risky.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
1. If the said land was inherited and was sold by two brothers to the current land owner avoiding their sisters, then she can chalenge the said sale and all subsequent sales,

2. It is not at all safe to get the said flat registered in the current situation without settling the matter out of the court.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
1. The complaint/case filed  by the sister  has become time barred in normal course since she has kept quite for 20 long years,

2. The said inordinate delay may be condoned by the Court against filing of condonation petition, if she can satisfy the court that she came to know about the said illegal sale within last 3 years.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
You have not paid full amount of the flat so period of limitation has started from the last installment you have paid. She can also claim pardon of limitation under section 5 of limitation act.  Amendment came in force on September 2005 and it gave daughter a right in ancestral property. If you are a bona fide purchaser of the flat then she can get her share out of the sale amount.  You can claim performance of the contract because you have paid 82 % of the total amount and make her a party in the suit. One fact is in your favor that you have made agreement of the sale of the property before the amendment act. So you will get benefit of this.
Shivendra Pratap Singh
Advocate, Lucknow
2737 Answers
41 Consultations
4.9 on 5.0

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