Hi My father and mother both died in the year 1990. My father had a self acquired property but he could not divide it in his life time. We are four brothers and two sisters.My one brother has died in the year 2010 and one sister died in 2008. But the children of both the deceased are there. The matter of division of property of the father is pending since 1990 as no mutual agreement is taking place between the bothers. Now one surviving sister and family members of the deceased sister have also raised their claim and wanted the property to be distributed equally among all six brothers and sisters. As per provisions of Hindu succession Amendment Act,2005 , Hon'ble Suprem Court has decided that women seeking equal share in ancestral property will not be entitled for the same, if the father has died before the amendment came into force,i.e. 9th September,2005. Though the division has not taken place in our case, the name of all four bothers have been recorded by Municipal Corporation and Municipal Tax payment receipt is being issued in the name of all four brothers. Because of interference of the sisters and their family, the division of the property has become more difficult. I request for the valued opinion of the learned counsels that in view of the above position, whether sisters or their family are also entitled to equal share. What is the remedy available to me as brothers staying at father's property are also not showing interest in division and matter is pending since 1990.
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1) on demise of father sons and daughters have equal share in self acquired property of deceased father
2) the judgment of SC is Applicable only in respect of ancestral property
3) file suit for partition for division of property by metes and bounds
4) seek injunction restraining brothers from selling the property or creating third party rights on the property
1.In this case the proeprty is self acquired.
2.in that event on death of the father his daughters have equal rights of sahre along with their brothers or their children.
3.So in this case you can not deny the sahre of your sisters since the proeprty is self acquired. Had it been your father's ancestral property then your sisters did not have any share.
4. SO make a mutual deed of partition as you can not avoid their share.
1. amendment in Hindu succession Amendment Act is applicable only on ancestral property it does not apply in self acquired property.
2, when a property devolves consecutively three generations it is called ancestral property.
3. in self acquired property of father all the children are his legal heirs therefore all children are entitled to get equal share in his father's self acquired property.
4. when property is mutated in the name of sons immediately after death of the father in year 1990 then daughters cannot claim because her claim is now time barred under limitation act and it shall be presumed that daughters have waived their right by making no claim of her share within 12 years from the death of her father.
The property belonged to your deceased father or mother and they have been reported to have died intestate.
Under the above situation, the properties left behind them shall devolve equally among all his legal heirs.
Therefore the properties can be divided into six equal shares and each one shall be entitled to one such share.
1. Your reliance on Hindu Succession (Amendment) Act, 2005 and the SC judgment thereon is misconceived. Amendment of 2005 comes into play only if the property is ancestral, whereas the self acquired property of your father is not ancestral in the hands of his children or grandchildren.
2. Since your father passed away intestate his property has devolved through succession equally on all his children including daughters. The share of deceased children further devolved on their respective legal heirs.
3. Any heir is at liberty to file a suit for partition to cull out his share in the property.
