How to share a property when the original documents are lost
Hi! I'm posting behalf of my dad, we have a property of 41 cents that has been bought by my grandfather (dad's dad - we don't know from whom it was bought) but the fact is we couldn't find the documents which state that this land has been bought by my grandfather or anything of the sort, we checked with the RTC and they say that the documents number beginning with our deeds had been shifted from a "place B" and apparently even at "Place A" where the documents were present, it cannot be found, (according to the lawyer of a relative, we do not have the monetary means to consult a lawyer so have turned to this site)
We do have some documents from my grandfather's grandfather's time regarding their property settlement and that everyone elder and younger than my grandfather has left the rights to my grandfather - directly, there are also documents that state so.
My grandfather had 5 children, 2 male and 3 female, 2 of the females have deceased and 1 of the deceased was unmarried. So now 2 male and 1 female are remaining. The females were married before the year 1970. One of the deceased female has 2 sons and her husband is still living, The living female also has 2 sons and her husband is living. My grandfather & grandmother have deceased.
I would like to know the following:
1. How to get the original documents? Is there any alternative to find them?
2. Once we find the documents, what would be the best way to settle the property? How can it be divided?
3. Will there be a share for the females too? There was something that said for women married before a particular year won't get a share, so we're in doubt.
Thank you for your time and we're very grateful for your answers and help!
Thanks and yours sincerely,
Asked in Property Law from Mangalore, Karnataka
1) you have to engage a search clerk . he will find the documents for you . although it may take time if said documents are in place A they would be found .
2) deed of family settlement . for division of property among legal heirs . have it duly stamped and registered .
3)all the 5 children of grandfather would have 1/5th share in their father property . in case of death of one of legal heirs ie daughter her share would devolve on her legal heirs
1. In order to find out the original documents you will have to carry out a title search at place A as well as place B. There is no alternative to carrying out of title search.
2. The property can be divided amicably by drawing up a partition deed and having having it registered after paying the stamp duty.
3. All the children including daughters have an equal share in the property of their father. The date of marriage is irrelevant.
Mr. Ajay Sethi and Mr. Ashish Davessar, thanks a lot for the speedy reply, I do have a few doubts regarding the 3rd question/answer, I do understand that the rights are equal but we found the following text in a book:
"6A. Equal rights to daugher in co-parcenary property.— Notwithstanding anything contained in section 6 of this Act—
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:
Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990. "
The book we found at:
If its alright, please explain what it means, was there anything that said there was no equal rights for married women at anytime before the amendment? Also if it was there, please tell me when it was changed and will the context above change anything?
I do have a little doubt regarding the 1st question/answer, we'll get right on searching for the document, suppose we cannot find it in either place A or B, what will happen to our land? We know by word of mouth that this land was purchased by my grandfather, will the land be confiscated by the Government? Well, in the RTC records and all the name of the owner of the land is still my grandfather's name.
Thank you very much for your patience and taking the time!
Asked 3 years ago
it is self acquired property of your grand father . on his death all his children have equal shares in the property .
Mitakshara law draws a distinction between ancestral property (referred to as joint family property or coparcenary property) and separate (e.g. property inherited from mother) and self-acquired properties. In the case of ancestral properties, a son has a right to that property equal to that of his fat her by the very fact of his birth. The term son includes paternal grandsons and paternal great-grandsons who are referred to as coparceners. An important category of ancestral property is property inherited from one's father, paternal grandfather and pate rnal great-grand father. under traditional Hindu law, a daughter is n ot entitled to property rights by birth in such ancestral properties.The property inherited by a person from his father is ancestral in his hands. He is not the owner of the property, he is entitled merely to hold and manage the property as the head of the family for and on behalf of the family. The ownership of the property is in the joint family consisting of himself and his sons. They are all co-owners or coparceners. (Hence the expression co-owners and coparceners are synonymous).
after passing of hindu Succession act situation changed drastically .if the father has e.g. not only sons but also daughters and not only grandsons but also granddaughters his interest in coparcenary property would not survive to the other members of the coparcenary but would succeed to his heirs so that not only his sons and grandsons would get an increased share upon his death, but his successors being his sons, daughters as also his widow and his mother would succeed to his interest in the coparcenary property under the provisions of the HSA.
karnataka amendment act talks of joint family ancestral property . it provides that son and daughters have equal shares . if duaghter was married before partition she would not have equal share in ancestral joint family property .
The text that you have been able to find has, with due deference, no relevance to your query.
The reason being, the section that you have culled out applies to only ancestral property. However, the property bought by your grand father does not qualify in law to be 'Ancestral property'. Hence, the said section pales into insignificance at the outset.
In this view of the matter there will indubitably be a share for the daughters of your grand father.