• Mitakshara

1..... Grandfather in order to save land from Haryana ceiling act 1972, relinquished the ancestral agricultural lands in favour of all of his 6 sons equally ( few major, few minors) in year 1968 equally( might be even Accelaration of succession ) ..... Land was definately ancestral at that time. Land was never partitoned ever before and still not partitioned. Now his sons already had vested interest by birth. What was need of relinquishment. But issue is mode of devolution??. Did it changed nature if land?
2... My father sold his share without our consent, i filed suit against father and purchaser to set aside sale deed. The main contention i am facing is that purchaser is defending his suit saying its not ancestral claiming due to the decree done back in 1968 citing mulla's commentry. 
3.... I need some specific judgement or law that can help in my case. Maybe on acceleration of succession or something which renders the relinquish decree void or something which safegaurds my interest. I recently read rohit chauhan judgement where even after partition , once successor is born its becames ancestral again. 
4..... Please be specific , and give solid advice. The above facts are concrete and to the point.
Asked 7 years ago in Property Law
Religion: Hindu

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9 Answers

1. See after relinquishment land is not ancestral it is as good as self acquired for father. if it was not relinquished then under ceiling act there is possibility government can take over same.

2. See if land relinquished it is not ancestral and father did not require consent in general to sale the land  but for technical grounds the papers of the case need to be pursued and the distribution and history of the land has to be seen. if the land is ancestral in nature in that case coparceners right are created if the property is sold after your birth you can claim right in same

 

M. Yogendra v. Leelamma N., (2009) 15 SCC 184 it was held as under:
“It is now ell settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.” 

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Dear client, 

After partition it has become personal property of each member.

Property not ancestral due to partition.

Not ancestral but coparcenry 

Provide absolute details for presice solution. 


Partition registered to ho gaya na with , delivery of possession is not mandatory in partition but only specify portion given. 

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

If you challenge the relinquishment then the land in excess of ceiling limit for which the relinquishment was done, may have to be surrendered to government 

The excess land was to be given to government. Instead it was transferred to bring it out of the purview of being in excess of ceiling limit 

So this may go against you as then the land area will reduce

Essentially the relinquishment can be taken as a partition 

The share received by a coparcenor on partition of ancestral property is also ancestral property in the hands of such coparcenor as regards his male issue 

So the share which your father got became an ancestral property in his hands in which his sons would acquire right on birth, whether such son was present on date of partition or born subsequently 

Meaning if the coparcenor who received a share on partition had no son on date of receipt of the share, then the share will be considered as his own property but the exclusive ownership gets extinct when subsequently a son is born. Thus upon birth of the son and now even daughters, they become entitled to such property as coparcenor members

But if the coparcenor sells the share at the time when a male issue was not born to him, then such a sale is valid 

So the sale made by your father is not valid as it was sale of ancestral property only provided you were already in existence at time of sale

If at time of sale you were not born, then you cannot object the alienation done by your father of his share of coparcenary property which he received on partition 

See Supreme Court judgment in CK Prasad v CIT Bangalore

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

  1. As per the information mentioned in the present query, makes it clear that your father has got the land from your grandfather by a relinquishment deed/ document.
  2. Let me tell you that any property which has been coming to the Hindu male in any way, Sowould definitely become the anscestral one for him as well as for his future generation.
  3. But, if he happens to sell the property before the new male member (now female also after 2005 amendment) born then that child would lose his rights in that property. Though you are there when it was sold, but no consent or NOC from you.
  4. So, you need not to worry about anything and in the mean time, I would try to find some good and recent (most important) judgments on this issue.

Sanjay Baniwal
Advocate, South Delhi
5477 Answers
13 Consultations

It is definitely an ancestral Property and you have a good case. The said mulla citation will not stand in the same. The said sale of land needs your consent to be sold being it's legal heir.

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

1.  Your grandfather's property is not ancestral proeprty.

If he had alienated the property by a relinquishment deed, then he is no more a owner of the property even though there was no proper or formal partition deed.

Now since the property devolves on the sons of grandfather, it will become their own and absolute proeprty, they can mutually partition the property anytime when they decide about it and get the partition deed registered to make effective.

 

 

2. Your claim for a share in the property on the basis of ancestral proeprty is not maintainable since this property do not fall within the ancestral nature of property.

 

3.  If you can find such judgments, you may proceed but in my opinion, your claim may not be maintainable

 

4. You may go through the answers given above patiently

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

Remaining son has no share in property during mother lifetime 

 

if mother dies intestate then son would have share in property 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

The property inherited or acquired by a woman becomes her own and absolute property.

Nobody can claim any share in the property as a right.

Further she has full rights in the property to alienate or transfer or sell or encumber the property in any manner and in anyone's favor as per her own will and wish.

If had decided to transfer her entire property to only two sons in the exclusion of her third son, then the third son cannot agitate or challenge this move because he has no rights in the property even after her death because she has already transferred the same to her two sons during her lifetime.

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

No he has no rights if the property gifted has become self acquired one

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

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