• Hindu Succession Law - ancestor property - mother and grandchild

Hello Advocates,

 My name is Smitha, I have a basic question about Hindu Succession Law.

 We are two daughters for my mother, she no longer live, died 10 years ago.

 My grand father inherited ancestor property and died intestate in 1980. When I asked my uncles about my mother share, they told that my mother denied all her shares in oral partition and reduced into writing + notarized (no partition deed) etc. This was shock to me, my mother never talked about this earlier. 

 The date and year on which they are talking about oral partition, I was 25 years old and major by age.

 Do grand children(s) not have any rights on ancestor property along with mother rights (if she is alive) and mother can release all her share to her brother without her own children signature on the oral partition?

 Please tell me that, can my mother release all her ancestor share without her legal heirs / major (by age) children's (my signature)?

They have only oral partition, reduced into memorandum and notarized (Not seen by myself). They must have got singed on the oral partition by some means from her.

 For 100% sure, they don't have any partition deed or relinquishment deed executed and register at the sub-register office.

 If worst case scenario, can she release all her father share by means of oral partition without a major son signature?
Asked 1 year ago in Civil Law from United States
Hi, daughters have equal right over the father property as per section 6 of Hindu Succession Act.
Section 6 of the Hindu Succession Act Read as follows.
' Devolution of interest in coparcenary property.-(1) On and from the commencement of the
Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara
law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a
son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken place
before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be
held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding
anything contained in this Act, or any other law for the time being in force, as property capable
of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall 
devolve by testamentary or intestate succession, as the case may be, under this Act and not by
survivorship, and the coparcenary property shall be deemed to have been divided as if a
partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had
they been alive at the time of partition, shall be allotted to the surviving child of such predeceased
son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as
such child would have got had he or she been alive at the time of the partition, shall be allotted
to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as
the case may be.
Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted to him if a
partition of the property had taken place immediately before his death, irrespective of whether
he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall
recognise any right to proceed against a son, grandson or great-grandson for the recovery of any
debt due from his father, grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such
debt:
Provided that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case
may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act,
2005 had not been enacted. 
Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson"
shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was
born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before
the 20th day of December, 2004.
Explanation.- For the purposes of this section "partition" means any partition made by execution
of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition
effected by a decree of a court.'. 

So as per law you have right over the ancestral property of your grandfather and suppose if she released her right by way of release deed she can leave her share only and consent of  her daughter is very much required  so you have share in the property.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
Under the law of land, you have share in the said property. Without consent of Lrs, release of share by mother has nothing to do. You better serve a legal notice upon your uncle and demand your share by partition by metes and bounds, if need arises, file suit for partition.
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
1. You have stated "My grand father inherited ancestor property and died intestate in 1980". 

2. If your grandfather has inherited ancestral property and died intestate, then you have the right on the said property which your mother can not relinquish/gift orally or otherwise,

3. However, make sure that you have rightly called it ancestral property,

4. The flow of the title of the property shall have to travel for four generations without any interuptions like partition/gift/settlement/will etc. i.e. from grtat grandfather to great grandchild, to be called an ancestral property,

5. If there is no such uninterupted flow of title of the said property for 4 generations then it is not an ancestral property and your mother is within her right to deal with her share of the property in any way she likes to,

6. However, to ascertain the fact, you can file a partition suit claiming your share of your mother's share of the said property.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1) the crux of the matter is whether property is ancestral or not 

2) if it was ancestral property you have share in property and your mother could not have relinquished your share 

3) your mother ought to have executed relinquishment deed to relinquish her share in property . 

4) partition deed for division of property has to be duly stamped and registered . 

5) if it is a memorandum and merely records settlement arrived at it does not require registration . 

6) issue legal notice to uncle to claim share in property . you can file suit for partition to clam your  share in property .
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
You can definitely challenge the partition deed and oral relinquishment by your mother in the ancestral property. Serve a legal notice to your uncle/s for claim and later file a suit for partition.
Rajni Sinha
Advocate, Mumbai
273 Answers
25 Consultations
4.8 on 5.0
A. Generally, any property Inherited  under Section 8 of the Hindu Succession Act will cease the ancestral property nature and inherited property shall be construed as individual property not an ancestral property. Hence, I hereby highly recommend this case shall be analyzed by the Senior Advocates who is expert in Civil Matter.

B. In case the property nature is ancestral, your mother cannot release the right, without obtain the apparent legal heirs consent and also cannot relinquish the same by oral partition. In these circumstances, you can issue the legal notice to the concerned person and claim your share by filing partition suit before the Court.

C. Ancestral or Hindu coparcenary property refers to any property acquired by the Hindu great grand father, which then passes  undivided down the next three generations up to the present generation of great grand son/daughter. In short , firstly,this property should be four generation old, secondly it should not have been divided by the users in the joint Hindu family as once a division of the property takes place, the share or portion which each Coparcenar gets after the division becomes his or her self acquired property.
B.T. Ravi
Advocate, Bangalore
736 Answers
30 Consultations
5.0 on 5.0
1. The grand children have a legally enforceable indefeasible share in the ancestral property. However, if the share has been relinquished by your mother with her free volition then you cannot lay a claim now.

2. The moot question herein is whether the property is still ancestral. Your rights are contingent on the answer to this question. If your mother has relinquished her share in the property with her free will then the property ceased to be ancestral. Consequently, this will bar you from suing to claim a share.

3. You are not sure whether your mother has signed on the document which according to you is a memorandum. If the document in question bears the signatures of your mother then it is taken to mean that your mother ceased to have any share after the execution of the document, which implies that no share has been inherited by you in the said property. Your mother had no right to renounce her share if the property was ancestral.

4. If a partition deed had been executed then it had to be registered. Oral partitions cannot be proved in the court.

5. You should conduct a title search in the office of local registrar to ascertain whether a relinquishment deed has been executed by your wife. 

6. You can file a case for partition to cull out your share in the property.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
From the facts narrated by you, you are entitled to claim on your mother's ancestral property which has now become yours. Oral partition, unless divided by metes and bound,is not enforceable under law as per the latest judgment.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0
1. The property is not ancestral. 

2. Oral Partition and Memorandum are two distinct concepts. If your mother has signed on the memorandum or any other document whereby and whereunder she has released her share then you cannot sue to claim any share in the property.

3, If she has not released her share then you are at liberty to file for partition to claim your share. 

4. You should get the document in question vetted by a lawyer to know exactly what legal rights are created by it.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
1) property is not ancestral . once deed of partition has been made it would be your grand father self acquired property 

2) on your grand father demise property property would devolve on your grand mother , your mother and your uncles 

3) the memorandum and other documents have to be perused by us to advice . 

4) as mentioned earlier if your mother did not execute relinquishment deed she would have share in the property .

5) issue legal notice and file suit for partition
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
Hi as the property is ancestral property as your great grandfather acquired the property by way of partition so it is ancestral in nature.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. This is not an ancestral property,

2. It was partitioned in favour of your grand father,

3. So, you shall have to take some other line to claim your share of the property,

4. File a partition suit claiming your share of the share of your mother in the said property,

5. Unregistered oral partion of the property as claimed by your Uncle is not valid legally.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0

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