Clarification about ancestral property
Sir, Ancestral property is in my grandfather's name who expired in 1989. He has three children. One son (my father) and two daughters. His both daughters expired before 2000. My father also expired in 2007. But inadvertently the property could not be transferred to my father's name at that time. We are four brothers and sisters. We want to sell some portion of the property. Can we sell that particular property ? Because some people say that, we can't sell as it is in our grandfather's name and children of my father's sisters will claim on property. As per my knowledge, they all expired before Amendment act 2005, so their children can not claim. Please clarify.
Asked 4 months ago in Property Law from Bhadrak, Odisha
The law says that if the property was partitioned before 2005 then the daughters can't be granted a share but now the property was never partitioned before 2005 therefore now they can demand a share in the property.
1) the issue is whether property is ancestral or not
2) if it is ancestral property then daughters children would not have share in ancestral property as daughters died before 2005
3) their children cannot claim share in ancestral property
1. You are right
2. Your grandfather passed away in 1989
3. That means he was not living when the 2005 amendment act was passed
4. As coparcenor was not alive in 2005, his daughters do not become coparcenors
5. For your aunts to have a share as coparcenors in the ancestral property, it is essential that your grandfather ought to have been alive on September 2005 when the amendment act came into force
6. If daughters cannot claim then their children too cannot claim
7. As your father was alive in 2005, all of you ie his children become coparcenors
8. So there is no restriction against you in selling the property
9. You can sell
To sell any property it should be mutuated in your name. If the said property is mutuated in your name and you have NOC of other legal heirs you can sell teh property
Firslty, you need to understand that the property is an ancestral one which means it hould be divided to claim your individual right in it.
Secondly, as per your query it is clear that there never been partition.
Thirdly, and after the recent judgements of the Supreme Court, it has been stated clearly that even the father died or some other legal heirs before 2005 then aslo all remaining would have equal rights if the same property was never been divided.
Advocate, South Delhi
Sir nature of the property has to be ascertained it is in name of grand father that does not mean that it is ancestral property. If property is portioned or received after as gift or inheritance not as joint family property then it is not ancestral in meaning and the legal heirs of sister of your father can claim.
Further in case it is ancestral legal heris of father sister has no claim as for Hindu undivided family property the amendment came into effect after 2005.
You can file for mutation of the property in your names and can sell it after the title is clear.
Further clear the history of property to reach conclusion.
1. If the grandfather died intestate then his property devolved through succession on his son and both daughters equally. The share of daughters is at par with that of son, which they can cull out by filing a suit for partition in the civil court.
2. The share of your father was 1/3rd, so if he died intestate then it devolved on his widow and all children. The competence to sell of the heirs of your father is only to the extent of his 1/3rd share.
3. 2005 amendment applies to only ancestral property.
Daughter`s Children have claim in the property.
Since this property is lying on your grandfather's name, it shall devolve equally on all his legal heirs.
Thus your father's sisters are entitled to an equal share in the property as a right.
You cannot deny them their rights .
The amendment effected in the year 2005 has nothing to do with this situation.