In order to find out the share of the deceased in the joint family property it was to be assumed as if a notional partition of the joint family property was done just before his death
We are four brothers and one sister. My father who had passed away in 2002 had an ancestral land. My four brothers had partitioned the ancestral property in 2003 by a registered partition deed without giving me any share in it. Can I challenge the partition?
The Hindu Succession Act, 1956 was amended in 2005 making the daughter as coparcener in the joint family, having the same rights as those of a son. So all the daughters who were alive on 9th September 2005 would be entitled to a share in the joint property. The amendment also provided an exception to this and stated that any disposition of the family property or partition by a registered partition deed or under court order, made before 20-12-2004, will not be disturbed. Since the partition of your father’s ancestral land was done through a registered partition deed, you will not be able to challenge it.
Before the amendment of Section 6 of the Hindu Succession Act, 1956 the joint family property would devolve on the remaining coparcener by survivorship. However, there was an exception to the rule of a succession of the joint family property by survivorship to the living coparcener in case the deceased had any female legal heirs claiming through him. In such a case his share in the joint property would not pass on by survivorship but will pass on to his legal heirs as if his share in the joint property was his separate property. In order to find out the share of the deceased in the joint family property it was to be assumed as if a notional partition of the joint family property was done just before his death. So though you cannot claim your share in the ancestral property as coparcener but you are entitled to your share in the part of the ancestral property which your father would have been allotted had there been a partition just before his death. So on this ground alone, you can challenge the partition as you were entitled to your share in fathers share in the ancestral joint property on the date your father passed away.
Balwant Jain is a tax and investment expert and can be reached on firstname.lastname@example.org and @jainbalwant on Twitter.