Asked July 01, 2016

Claim over father's property by sister

  • 1 Answer

we are two sisters i am the elder one we both are married before 1984 now iam in the position on my fathers ansesters property science 12 years(with ROR record s ) now my sister is asking share . is she has any right

Answer 1

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Saumya Kumar
In a recent case of Prakash v. Phulavati((2015) 11 SCALE 643), the Supreme Court has said that the amendement including daughters as successors will be applicable from September 9, 2005 which is the date on which this law was introduced. Your father's property will be equally distributed among his daughters if your father died after Septemeber 9, 2005 without a will. If he died before this date then both daughters will have no right over the property. Assuming that your father died after September 9, 2005 without a will, then both you and your sister automatically become coparceners to your father's property and are enttilted to equal share in the property. In case your father executed a will then the property will be ditributed as per the terms of the will for his self-acquired property. The ROR you are relying upon does not create any title in your favor. It becomes a proof of the fact that you are in possession of the said property. (Raj Krishna v. Barbani Coal Concern, 60 CLJ 477; Ahmed Hossain v. Digendra Narain, MANU/WB/0120/1935 : 40 CWN 22). Your sister can challenge the ROR with the help of evidences. (Lakhi Nath Bera and Ors. v. Nabadwip Chandra Nandi and Ors., MANU/WB/0107/1926 : 31 CWN 192). Ideally while formulating the documents of the property, you should have taken a No objection Certificate from your sister. The Record of Right with a NOC from your sister would have meant that your sister has given up her right over her father's property. The only point you can contend if your sister challenges the ROR that she should have done that within the limitation period under Article 58 of the Indian Limitation Act, 1963. ( Kumeda Prosunna v. Secretary of State, 19 CWN 1917 and Saroj Kumar v. Umedali, MANU/WB/0422/1921 : 25 CWN 1022). The Court can dismiss this claim if your sister is able to prove to the Court that she had no knowledge about the existence of the ROR. With regard to partition the legislature has not prescribed any period of limitation for filing a suit for partition becuase partition is an incident attached to the property and there is always a running cause of action for seeking partition. The co-sharer (You and your sister) has the option to ask for partion whenever he or she wants therefore there is no limitation given in the legislature for a suit of parition. ( Vidya Devi v. Prem Prakash, AIR 1995 SC 1789). To challenge this point you can claim that you had taken adverse possession of the property and are no longer acting as a co-sharer of the property with your sister. To prove adverse possession, you will have to show that in the intervening period you had made it very clear to your sister in with the help of documents and statements that the property belongs to you and that you will not share it with her. In such a sitaution your sister should have filed a suit within 12 years from the date she dicovered that you were claiming ownership over the property. If she did not file a suit objecting to your adverse possession in this period, that means she has accepted your declaration and has relinquished her right. To conclude, the ROR will not be enough to prevent your sister from claiming the property. You can present a will if there is one by your father where he has given the property to you. In the absence of such a document, you and your sister become co-parceners of the property to be shared equally between you two. There is no time limit with respect to a suit for partition and your sister can file it even now. To prevent that, you can raise a claim that you have acquired adverse possession over the said property in full knowledge of yur sister. To make that claim you will have to convey to your sister that you claim this property as your own property and not as a property to be shared between you two. By such a declaration, the sister is expected to object to this claim or challenge the ROR for which she has the time period of 12 years under the Limitation Act if it is an immovable property. If the time period of 12 years has expired from the date on which you made the claim then her suit will be barred by limitation now. For this it is very important to prove to the Court that your sister was aware about the fact that you claimed adverse possession over the property.
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