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Can my sister claim share in ancestral property after partition?

Shivendra Pratap Singh

Advocate

05/07/2021

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Question: My father died in 2010. Thereafter, I have partitioned the ancestral property on mutual agreement of brothers. I have two brothers and one sister. Only brothers got share in ancestral property. I want to know whether my sister can claim share in ancestral property after partition. Brothers have no dispute in partition. After the partition I want to transfer this property to my son. 

I think there is no ground to challenge the partition. Once the brothers have mutually partitioned the ancestral property my sister has no right to claim. Can my son sell all property to another person and purchase a new land in his name? This may protect my son’s right. 

Question from: Uttar Pradesh

This kind of partition is invalid and it has no legal effect. When the father (Karta of Hindu undivided family) dies intestate i.e. without making a will, the ancestral property devolves upon the coparceners. 

After the enforcement of Hindu Succession (Amendment) Act 2005, daughters have the right in ancestral property. Daughters became coparceners therefore entitled to get rights in ancestral property as equal as the son. 

You have partitioned the ancestral property with the intention to grab your sister’s share. After the notional partition, you are planning to transfer your share to your son however, he is also a coparcener. This would be the example of shady partition with ulterior motives to frustrate the legal provision. 

Your sister can claim her right even after the partition

In the Vineeta Sharma case, the Supreme Court has held that a daughter by birth acquires rights in the ancestral property. Therefore, the daughter can regain her share even after the notional partition. 

You have cleverly partitioned your share and gave nothing to your sister. This alienation is effected only to protect your share because you think that after the partition your sister will not claim her right. 

This is your wrong assumption because the initial partition is invalid. You had no right to do a notional partition. Section 6(3) of the Hindu Succession Act 1956 specifically bars such a partition. 

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;

Section 6(3) Hindu Succession Act 1956

You have grabbed your sister’s share and orally divided the property among sons only. This is illegal and violates the provision of Section 6(3). The partition is illegal ab initio and any subsequent transfer will not give a good title. You cannot prevent your sister from claiming her share because she has the right even after the partition.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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