• Reclaim of ancestral property

Dear Sir,
My husband’s grandfather had 15 Acres of self-earned Agriculture Land. He registered this property for my father-in-law on 1964. My Father-in-law had a wife and 2 sons .He died on 1995 and he didn’t separate that above mentioned property to his family members.
After My father-in-law’s death, his property was partitioned and registered in his wife and 2 son's Names according to legal inheritance on 2003, it was segregated with 5 acres for each person. My husband is a 1st Son of my father-in-law.
We got married in the year 2014 and we had our first baby in 2015. My husband sold that mentioned property to another person in 2016. He had mentioned in the sale Deed that the property is getting sold for the future of me and my children welfare and the sale deed was signed only by my husband from our side. At that time we had only one child and after that we had one more child.
I realised that the property was sold by my husband without my knowledge in 2019 and after that I raised the regular civil suit in the court. In this case i have mentioned that this property is our ancestral property and my husband sold that property without court permission. He didn’t spend any amount to our family needs, but has spent the full amount lavishly. 
Now we are not living together in the same house, i am living separately with my 2 children in my father’s house. So we request the honourable court that we need to be redeemed our ancestral property and also my husband have to give me an amount for my children’s maintenance.
Can i get a stay order not to use that property till the judgement of this case closes? 
Please suggest me if there is any possibilities for favourable judgement in the above case to us.
Asked 1 month ago in Property Law
Religion: Hindu

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12 Answers

1) it is not ancestral property 

 

2) it is self acquired property of grand father 

 

3) grand father transferred property to father and on his demise property. Divided by partition deed 

 

4) you are entitled to maintenance for yourself and children 

 

5) court would not grant you any stay order 

Ajay Sethi
Advocate, Mumbai
82706 Answers
5254 Consultations

5.0 on 5.0

The property was registered to your father in law by his father. Therefore it is not an ancestral property anymore. Now the property belonged to your father in law. But the division took place before the birth of the child. After that he sold the property.  You may as a right to maintenance demand money from your husband. As he has sold the land he has the money and he has to give you the money. 

Rahul Mishra
Advocate, Lucknow
12674 Answers
32 Consultations

5.0 on 5.0

Firstly this is not an ancestral property.

You have yourself mentioned that this property was your husband's  grandfather's self acquired property, which was subsequently transferred to your father in law.

Now upon your father in law's intestate death, the share of your father in law devolved equally on all his own legal heirs. 

Therefore the share of property acquired/inherited by your husband becomes his own and absolute property.

Your husband need not obtain permission form you nor anyone to dispose his own property.

If he has not paid maintenance to you after you started living separately away from him, then you are eligible for maintenance  (provided you are not employed and do not have sufficient source of income to sustain your expenses), and for your child.

You can file a suit for injunction on any property that is still existing on your husband's name for the purpose of security towards the maintenance that may be granted by court in a maintenance case filed by you against him. 

You may not be eligible to retrieve the properties that have been sold by your husband through court also. 

T Kalaiselvan
Advocate, Vellore
72791 Answers
1111 Consultations

5.0 on 5.0

I believe the buyer of property also asked this question .

 

Partitioned property becomes self earned property and not remain ancestral property. 

The property is already sold. 

The amount is also spent.

 

You can not claim anything on property from new seller except to harass them.

You can claim on the money if any remaining in your husband account and if its not spent completely.  

Ankur Goel
Advocate, Bangalore
311 Answers

4.9 on 5.0

Hello,

  1. Firstly the property referred to does not qualify to be ancestral property and you cannot claim a right in the property of his. The children too do not have a right in the self acquired property of the father while he is alive.
  2. Secondly,you certainly have the right to seek maintenance for yourself and your children. Now, the income generated by the sale of the property, his monthly income, any other assets he has and the life style you and children while you were with him are factors that can influence the court to determine the amount of maintenance.
  3. You need to engage a lawyer locally to help you file appropriate case for maintenance, either under provisions of CrPC or PWDVA.

S J Mathew
Advocate, Mumbai
3293 Answers
147 Consultations

5.0 on 5.0

Yes go for a stay order injunction before competent civil court in the above circumstances

Prashant Nayak
Advocate, Mumbai
23442 Answers
49 Consultations

4.4 on 5.0

As you have stated, your husband's grandfather had self-earned property. As such, his registering it in the name of your father in-law was in order. It cannot be legally treated as an ancestral property. The partition of that property among the legal heirs of your father in-law after his intestate death was also in order. The mere mention  in the sale deed that your husband sold his share for the welfare of his wife and children shall not be legally binding on him. Your consent was not legally necessary for your husband when he sold his share. In the circumstances, you may ask for a substantial settlement in the divorce case citing your husband's financial position. However, you do not have any claim whatsoever on the property.

Swaminathan Neelakantan
Advocate, Coimbatore
833 Answers
14 Consultations

4.9 on 5.0

- Since that property was self acquired property of your husbands grandfather , then after his death this property would be devolved upon his legal heirs i.e. his wife and children equally. 

- Further, after the death of father in law intestate , his share in the property would be devolved upon his legal heirs equally , and hence you not having any right to claim during the life time of your husband. 

- Further after getting the share it will considered as self acquired property of your husband , and thereby he also having his right to sell /transfer to any one without any interfere. 

- Hence, you cannot get stay order from the court 

- However, you and your child can claim maintenance and residential right from him legally 

Mohammed Shahzad
Advocate, Delhi
7090 Answers
74 Consultations

5.0 on 5.0

Dear Madam

You may file a suit for cancellation of such sale deed saying that it was not sold for family necessity and that your husband was mislead and it was without sale consideration.

Kishan Dutt Kalaskar
Advocate, Bangalore
5897 Answers
297 Consultations

4.8 on 5.0

1.   Ancestral property is defined differently and it is not an ancestral property.

 

2. The property stood in the name of your father in law, since deceased, and after his death a part of it has been inherited by your husband legally.

 

3. He has all the right to deal with the said portion of the property he has inherited the way he likes for which he is not required to take your consent or inform you.

 

4. So, claiming  the said property or any portion thereof will not yield you the desired result, that too when it has already been sold to a third party.

 

5. You can file a maintenance suit against him claiming maintenance for yourself  and your two kids and to ensure regular payment of the maintenance, you can pray for order for attaching any of his Bank account/FD or building (to give on rent to recover the maintenance amount in case he defaults).     

Krishna Kishore Ganguly
Advocate, Kolkata
25607 Answers
726 Consultations

5.0 on 5.0

Hi

Since the property belonged to your husband's grand father which later was registered in the name of your father in law and thereafter since there was no partition between your in laws, the property shall continue to be ancestral in nature at the hands of your children.

So, in your case, your children are minor,  you in your capacity as next best friend of your children can file a suit for partition and claim your children's share in ancestral property.

Also, you should implead the buyer of the property as defendant and obtain injunction orders under Order 39 Rule 1 CPC restraining the buyer from alienating the property. 

Also, for maintenance of yourself and children, you should file Section 125 Cr.P.C petition and claim maintenance. 

You may refer to Supreme court of India's recent judgment in RAJNESH vs  NEHA Criminal appeal No 730 of 2020 wherein your rights for maintenance, living in shared household of your husband etc are now crystallised.

Hope this information is useful..

Rajgopalan Sripathi
Advocate, Hyderabad
2119 Answers
394 Consultations

5.0 on 5.0

Dear Maam,

1) After the property got partitioned between the sons and mother in law in year 2003, It acquired the nature of the the self acquired property of your husband.

2) As long as the property was unpartitioned it had character of ancestral property, thus your husband had legal right to sell off his self acquired property as per his whims without the your or Childs consent.

3) You can file case for maintenance against him for yourself and for the children under sec 125 CRPC.

4) You can also file for contested divorce asking for hefty alimony from your husband.

Thank you

Anik Miu
Advocate, Bangalore
1528 Answers
18 Consultations

4.9 on 5.0

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