my father has 4 dughters and one son. he divided the propery(land 8 acres)into 5parts for son 7 acres nd the remainng 1 acre to 4 daugters. and he took some amount instaed of land. this docu was registered in 2010.now in 2016,son died of heart attack in april. the passbook and title deed is still with father name; by mistake father gifted the same property (1acre from the 7 acres) ) to his daughter again.now daughter in law nd daughter both r going for aappling pass book.who is eligible the latest given land ….
Answered by Sammanika Rawat, Lawfarm Researcher:
Thank you so much for writing to us. Since your father had a huge amount of property, we are assuming that it was an ancestral property with he would have gained from his father. If it was an ancestral property, then as per the Hindu Succession Act (again assuming that you are a Hindu) the ancestral property has to be divided equally among the son and the daughters even the daughters and father were alive till 2005. As per the Hindu law, a person does not have absolute right over his property (which means that he cannot divide the ancestral property as per his own choice).In your case, clearly all the parties were alive till 2005; hence your father could not perform an arbitrary partition of the ancestral property. It had to be divided in 5 equal parts. Any one of the four daughters can challenge the 2010 partition on the grounds of discrimination.
If it was not an ancestral property, rather a self-acquired property of your father, the 2010 partition was legitimate as your father had full rights to decide and divide his property as per his own will. If this partition deed (of the self acquired property of father and not the ancestral property) was registered in the name of the son (7 acres) and the daughters (1 acre among all), then the father cannot exercise further rights to rename son's property in the name of any of the daughters. However, if the partition was not a registered deed, but only a mention in the father's will; then the father has full right to change his will accordingly. Also, please note that for the daughter to enforce the gift deed, it must be registered. In the registration of the gift deed, your father cannot be the transferor as he has already transferred his rights to the son and he cannot further transfer those rights. After the death of your brother, his share of property shall be equally divided among the Class 1 heirs of him which include, his widow, his children and his mother (if she is alive). The property cannot go back to the father.
Hence you must first clarify whether the property was an ancestral property or a self-acquired property (i.e. earned from his own money). If it was an ancestral property, any one of the 4 daughters can challenge the 2005 partition on the grounds of being arbitrary and unequal. All the 4 daughters and the son will get equal shares in the 8 acres property. However, if it was a self acquired property, then the daughter cannot have the right in the son's property as it has already been transferred by the father to his son and cannot be further transferred.
Hope we were able to help you. Feel free to write back.