Dear Client,
Daughter always had a right in father property, She is equal share holder in father / mother property along with brothers. But now her claim is barred by limitation.
Compensation or possession depends on her choice,
2005 Hindu Succession Act (Amendment)
2005 Hindu Succession Act(Amendment) brought lot of changes and rules.Many High court gave decision on basis of that and considered it prospective but in case of Prakash Vs Phulvati Supreme Court said that those amendments are retrospective and any partition done before 2005 cannot be opened. Doubt(related to partition and Explanation given in 6c of Act) ----- Now my doubt is that amendment came and SC gave some verdict , so the similar cases or cases involving any kind of partition(registered or oral) done before 2005 will it be judged in the light of "Prakash Vs Phulvati " verdict.I mean any court will straight on seeing any similar case will say court will not entertain anything related to partition done before 2005. or SC can again modify its own judgement. Issue ---- a)I am the owner of an apartment build on a land for which oral partition was done in 1985 and revenue record were also updated but daughter's consent was not taken.So can daughters come and ask for their rights. b) Based on your experience please tell if compensation will solve the case or if court gives order in favor of daughters then me and apartments of 50 other families staying there will be demolished or families can be asked to leave.
Asked 6 years ago in Property Law
Religion: Hindu
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14 Answers
As on date SC judgment is final and binding
2) Oral partition is valid
3) you can rely upon revenue records to prove that partition was acted upon
4) compensation should help in arriving at an amicable settlement with the daughter
See SC can modify rule laid down by it subsequently but till the time it does not do so the law and the precedent settled in the Case of Prakash vs. Phulwati shall be followed. The any civil court if come across with any case where such law shall be applicable will judge same in light of the decision of the Supreme Court.
a. She in case the property was ancestral and the partitioned opened in 1985 then the daughter shall not have any right over it now.
b The court shall not demolish as in even in case daughter get any right her right is barred by limitation further the flat owners also got right in property.
1. The law as amended requires that on and from September 2005, the daughters of coparcenors will also become coparcenors alongwith sons
2. Meaning the father of daughter has to be alive on above date and the ancestral property should be in existence, that is it should not have been partitioned
3. So the test is to check whether on the date of amendment, your father was alive.
4. If your father was not alive then the daughter does not become a coparcenor and thus cannot claim in ancestral property
5. If your father is still alive then his testimony will have to be recorded in writing that there was a oral partition of property in 1985
Hello,
On the basis of the judgment passed by the SC in Prakash Vs Phulvati, any case filed against the said law will be dismissed on the ground of the law laid down by the SC in the said judgment.
Daughter now can not claim the right if the same was ancestral property
Thanks.What about in case of "self acquired property".Will the SC judgement in case of "Prakash Vs Phulvati" hold true for self acquired property also. a)Even if above SC judgement does not apply then also do daughters have right to claim now in year 2018 or after.In my case the property was not held by previous 4 generations (no such records), so I am not sure if we can count this one as ancestral.The land was sold by 3 brothers to builder in year 2004-2005.Builder constructed apartment in 2012. b) In case lets assume that daughters got their rights, then who will be accountable builder or residents.
Asked 6 years ago
If its self acquired property of your father, then daughter will have a share
But now property is already sold. Third party rights created in favour of flat purchasers.
Sale happened in 2004. Daughter did not take any action. Now she has lost the right to claim. Her claim will be a stale claim which court will not entertain. She will be barred by limitation. Maximum within 3 years of date of sale, the daughter ought to have challenged the sale. She didn't do so. Now she cant claim. So you dont have to worry. Even if she challenges she will fail the limitation test.
In respect of self acquired property daughters have equal share in property
2) daughters can file suit for partition to claim share in property
3) they can file suit to set aside sale deed executed in favour of builder
In case of self occupied property of father , if father(65 years old in 1980) has done partition during his life time via Panchayat pallupati(stamped not registered) but properly updated it in revenue records then also daughter's can claim right.Local lawyers of Karnataka told that panchayat pallupati is valid in eyes of law and in Karnataka and revenue department follows it for giving Khata.I read some where that in case of self acquired property father can partition and give to any one he wants.In this case he willingly wanted to keep daughters out of it. Please tell me if still daughters can claim right and still can override partition done by father.
Asked 6 years ago
Father can during his lifetime give property to whomsoever he pleases
Daughter cannot then claim share in property
If your father was not alive in 2005, then daughters cannot claim. Simple as that!!
Oral partition is recognized in law hence the court cannot say that the oral partition among themselves is invalid.
The amendment to Hindu succession in the year2005 was aimed at giving equal rights to daughters in the ancestral properties at par with the sons.
It is called coparcenary rights.
However this has no retrospective effect.
This amendment has nothing to with the oral partition that took place in the year 1985.
Therefore your fears are imaginary and unnecessary.
You are repeating the same question in a different manner.
The amendment to the law of succession and the supreme court judgement are all related to coparcenary rights in the ancestral properties and not related to self acquired or inherited property.
Any claim in that regard is not maintainable or tenable in law.
Since this is self acquired property it is the decision of the father to transfer his properties to anyone of his choice.
Nobody can question his authority nor has any right to claim any share in it.
Moreover he transferred the property during his lifetime.
Therefore the daughters cannot make a claim for any share in the property as a right..
No the judgement is not Applicable in case of self acquired property it is devolved by intestate succession laws on demise or by partition , sale transfer in life.
The daughters claim is barred by limitation, as she has neither challenged sale nor the partition.
family settlement though not registered is valid piece of evidence and if the property is distributed by father in life then daughter does not have any right in the property.
Yes the partition is valid and daughter does not have any right in the property.