Legal Question in Real Estate Law in India

Subject: Dispute of Parental undivided property.

Mr. Tukaram the landlord (karta) of the family has the property (i.e. 2.73 Hectares of Agricultural land) situated in Maharashtra state, married to Vimalbai and had a son name Ganpat in the year 1940. Mr. Tukaram got divorced somewhere in the year 1945. During that period divorce was made by panchayat, hence no record of divorce is available now. Mrs. Vimalbai had expired in the year 2002.

Again Mr. Tukaram has got married to Durgabai in the year 1945 and had one son and four daughters with his second wife. He had added the name of his four daughters in the 7/12 sheet of his ancestral property (agricultural land) as other right holders as a part of marriage agreement between Durgabai and him. The Talathi has made entry of four daughter�s name as other right holders in the 7/12 record of land after receipt of application. Both of his wives are expired now.

After his demise in the year 1999, all the four daughters have added their names in the main right holder column of 7/12 record by giving application to Talathi in the year 2008. All the four sisters have been married before 1994 and are well settled. The father (i.e. Tukaram) had not executed any will or partition before his demise.

In 2012, the second wife�s son name Vitthal has purchased the share of his all four sisters through a registered sales-deed leaving behind only 1/6th share of the property to his elder brother (i.e. Mr. Ganpat of first wife�s son).

According to the Maharashtra Amendment adds to the principal Act (THE HINDU SUCCESSION ACT) a new chapter II-A has excluded a daughter married before 22/06/1994 (the date of commencement of the act) from the benefit of getting equal share in the father�s property. Also the Hindu Marriage Succession Act amendment 2005 gives a daughter equal right in the property by birth. But the applicability of the Act is from the year 2005. The Act neither speaks about a daughter married before 2005 nor it gives the clear idea about the share governed by the state law. The laws in the states in India relating to Mitakshara coparcenary property differ.

So kindly suggest the share of first wife�s son and the share of daughters in the father�s ancestral property, as the daughters have been married before 22/06/1994. If the petition is filed now then what will be the result or outcome with respect to the law. Is notional partition applicable or exists in this case, as the KARTA of the family has not executed any will or partition. For example: -

i) 1/3rd share of first wife�s son.

ii) 1/3rd share of father (Landlord).

iii) 1/3rd share of second wife�s son.

iv) And again from 1/3rd share of property of father, the first wife�s son Ganpat will get 1/6th share so that His total share in the property = 1/3rd share of his own + 1/6th share from his father. (As the father has 2 sons & 4 daughters).

v) Kindly explain whether Article 245 of the Indian Constitution is applicable for this case for resolving conflict between the laws i.e. The Maharashtra Amendment to Hindu Marriage succession Act 1994 Chapter II A and Hindu Marriage succession Act amendment 2005.

References: -

i) The Maharashtra Amendment to Hindu Marriage succession Act 1994 Chapter II A

ii) Hindu Marriage succession Act amendment 2005

iii) Article 245 of the Indian Constitution

iv) Section 29 A Mitakshara Law

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