• If daughter died before 9 Spet 2005,will her surviving Children have claim on Ancestor Property

Hi ,
Hindu succession action 2005 amendment inforced on 9th Sept 2005 and I have read in case of CIVIL APPEAL NO.7217 OF 2013-PRAKASH & ORS.Vs PHULAVATI & ORS. that both daughter and father should alive in 9 set 2005.
In my case, 
1. Property was in name of mother and self acquired property by my father.
2. Mother 1 daughter died on June 2005 before 9th Sept 2005..
3. We 3 brother last year selling some land which were in the name of my mother.
4. My late sister's daughter wanted share in my mother's(her late Nani's whoe died in 2010) property?

Can my late sister's (died in June 2005) daughter claim on Nani property as per Hindu succession act now?
Regards
M kumar
Asked 4 years ago in Property Law
Religion: Hindu

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18 Answers

Yes, you sister's daughter can claim her mother's share in her Nani's property.

Hindu Succession Amendment Act of 2005 has no application in this case.

the property in question is not ancestral in nature.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

On demise of grandmother her 3 sons and one daughter have equal share in property

2) on daughter demise her share would devolve on her children

3) itvis not ancestral property and daughter has equal share in property

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

The commencemement date for AMEMDMENT of hindu succession act is 9 th september so at the time of amendment both the daughter and living coparcener should be there also the act applies only.prospectively .

Refer para 23 and 24 of the said judgement she will not have any right.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. If the proeprty stood in the name of mother then the issue of ancestral property looses any significance as the proeprty of pwneis liable for equal division among her children whether the same as her self acquired or ancestral property.

2. So if your sister was alive at the time of death of her mother then she inheirted her proeprty in equal share along with her borthers.

3. So on her death the children of your sister inherit the share of their mother in which case the children of your sister can very claim their share in the proeprty and file a suit for partition in the civil court seeking their share and seek injunction on selling of the property.

4. Hence it is advisable that you amicably settle the dispute with your nephew/niece by making a mutual deed of partition by giving their due share.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

The judgment of SC is only in respect of ancestral property

2) it is not applicable to self acquired property

3) after passage of Hindu succession act 1956 daughters have equal share in self acquired property of deceased father

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

Sorry I mis-read the fact they will have share in the property as any property of Hindu Female is of her own like self acquired and shall be dealt as prescribed under section 15 and 16 hindu Succession Act. So demised daughters living heirs will have claim.

14. Property of a female Hindu to be her absolute property

(1) Any property possessed by a Female Hindu, whether acquired before or after the commencement

of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, "property" includes both movable and immovable property

acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or

arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her

marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner

whatsoever, and also any such property held by her as stridhana immediately before the

commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under

a will or any other instrument or under a decree or order of a civil court or under an award where the

terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in

such property.

15. General rules of succession in the case of female Hindus

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in

section 16 :

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or

daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1)-

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the

absence of any son or daughter of the deceased (including the children of any pre-deceased son or

daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon

the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall

devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased

son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified

therein, but upon the heirs of the husband.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. As per your narration it was self acquired property of your father and later on transferred in the name of your mother. In your mother's hands it is her self acquired property.

2. In case of intestate death (without executing a WILL) of your parents, the property would devolve equally to all their children irrespective of whether they are sons or daughters.

3. Assuming that your parents died intestate, the property would devolve equally to you and your siblings ( brothers and sisters ). In case of deceased sister, her share shall be further equally sub divided amongst her husband and children.

4. Your late sister's daughter has equal right along with other legal heirs in her family totalling to her deceased mother's share, since it was the self acquired property of your parents.

5. Hindu Succession Act does not apply in the instant case since the property is not an ancestral property but self acquired property of their parents and the cut off date of 9-9-2005 has no relevance and the death of daughter before the amendment to Hindu Succession Act has no significance.

Shashidhar S. Sastry
Advocate, Bangalore
4167 Answers
258 Consultations

5.0 on 5.0

Please read below law as well of the Hindu Succession Act, section 29A

29A Equal rights to daughter in coparcenary property .— Notwithstanding anything contained in section 6 of this Act,—

(i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in thesame manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share allotable to the pre-deceased child of pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter, as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition:

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;

(v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

The property in question is a self acquired property and hence the Hindu Succession Amendment Act has no application in the present matter.

Inheritance in this case will be governed by section 8 of the Hindu Succession Act.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Respected sir ...

according to hindu law if any male person died without any Will his property will be devolve according to section 6 and his share will be according to section 10 of the Hindu succession Act, 1956 read with amended act 2005 section 6 of HSA, 6. Devolution of interest of coparcenary property.- 1[6. Devolution of interest in coparcenary property. —(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,— (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub­-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) 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; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre­-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect— (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005] Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. State Amendment Sections 6A to 6C Karnataka: After section 6 the following sections shall be inserted, namely:— "6A. Equal rights to daugher in co-parcenary property.— Notwithstanding anything contained in section 6 of this Act— (a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son; (b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be; (c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition; (d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990. 6B. Interest to devolve by survivorship on death.— When a female Hindu dies after the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990, having at the time of her death an interest in a Mitakshara co-parcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act: Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship. Explanations.— (1) For the purposes of this section the interest of female Hindu Mitakshara co-parcenary shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not. (2) Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the co-parcenary, or any of his or her heirs to claim on intestacy a share in the interest referred to therein. 6C. Preferential right to acquire property in certain cases.— (1) Where, after the commencement of Hindu Succession (Karnataka Amendment) Act, 1990 an interest in any immovable property of an intestate or in any business carried by him or her, whether solely or in conjunction with others devolves under sections 6A or 6B upon two or more heirs and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under sub-section (1) shall in the absence of any agreement between the parties, be determined by the court, on application, being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application. (3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.— In this section 'court' means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may by notification in the Official Gazette specify in this behalf. [ Vide Karnataka Act 23 of 1994, sec. 2 (w.e.f. 30-7-1994).] COMMENTS Disposal of undivided interest in property A wife inherited the interest of her deceased husband in the family property, she continued to be a member of the family and the property including that of her's was held by the family. As a female heir, having inherited property under section 6, she cannot be treated as having ceased to be a member of the family without her volition. Though she can dispose of her undivided interest in the co-parcenery property by a w ill or sale for a valuable consideration, she cannot make a gift of such interest without the prior consent of the other coparceners; Kanna Gounder v. Arjuna Gounder , AIR 2003 Mad 157. Partition of coparcenary property (i) The contention of the petitioners that there was automatic partition amongst the heirs of the deceased Karta on his death has been negatived because it is only when the deceased had left his surviving female heirs as provided in proviso to section 6 of the Act, a notional partition is deemed to have taken place in the joint family property for the purpose of ascertaining the share of the deceased in the joint family properties which comes to the share of the female heirs. If there are male heirs there is no automatic partition; Shivgonda Balgonda Patil v. Director of Resettlement, AIR 1992 Bom 72. (ii) The heirs will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death in addition to the share which he or she received or must be deemed to have received in the notional partition; Gurupad v. Hirabai, AIR 1978 SC 1239. (iii) The fiction in the explanation of section 6 of the Act should be carried to a narrow extent only with a new point to implement the purpose for which it was introduced. When there were only two coparceners and one of them died, then if any person other then the coparcener is entitled to a share as a result of severance of the share of the deceased coparcener, the share of such other person will become fixed; Shushilabai v. Naraynarao , AIR 1975 Bom 257. (iv) The deceased coparcener's share gets fixed on the date of his death, subsequent fluctuations in the fortunes of the coparceners do not affect it; Karuppa v. Palaniammal; AIR 1963 Mad 254. Scope The interpretation of provisions of section 6, its proviso and explanation 1 thereto with legislative intent in regard to the enlargement of share of the female heirs, qualitatively and quantitatively; Gurupad v. Hira Bai , AIR 1978 SC 1239. Section 10 10. Distribution of property among heirs in class I of the Schedule. The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:- Rule 1.- The intestate' s widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2.- The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3.- The heirs in the branch of each pre- deceased son or each pre- deceased daughter of the intestate shall take between them one share. Rule 4.- The distribution of the share referred to in Rule 3-- (i) among the heirs in the branch of the pre- decease son shall be so made that his widow (or widows together), and the surviving sons and daughters get equal portions; and the branch of his pre- deceased sons gets the same portion; (ii) among the heirs in the branch of the pre- deceased daughter shall be so made that the surviving sons and daughters get equal portions. if the mother of the child is alive he has no right or share in his property till death of his mother....

Thank you

Dinesh Sharawat
Advocate, Delhi
1258 Answers
12 Consultations

4.9 on 5.0

If your mother is reported to have died intestate then the properties left behind by her shall devolve equally on all her legal heirs which include the legal heirs of the predeceased legal heirs also.

This is not ancestral property .

Since your deceased sister is one among the legal heirs, though predeceased, the entitlement of her share out of your mother's property shall devolve on her own legal heirs, hence the claim by her daughter for her deceased mother's share is legally valid claim and maintainable in law.

The law referred by you is not applicable to this situation hence do not misinterpret law

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

So in lieu of above example . it seems daughter and father both should be alive on 9 Sept 2005. In my case my mother was alive on 9 sept 2005 but my daughter died before this act came into picture hence as per interpretation, she should have no rights as she died in June 2005 i.e before 9th Sept 2005.

Your understanding is incorrect.

This law will be applicable for ancestral property and it is for the coparcenary rights alone and not for intestate succession.

The property lying on your mother's name at her death,is not ancestral property.

If you see that in this case died daughter's children can still claim on their Nani property and demand from their Maternal uncle then please provide relevant reference law or similar Supreme Court reference verdict?

This is position and provision of law. As per Hindu Succession act, 1956, the daughters are entitled to an equal share in their parent's properties.

Your sister being one among the children of your deceased mother shall be one among the class I legal heirs.

Her share in the property shall shall devolve equally on all her legal heirs.

She cannot be ignored to allot her share in your mother's properties if she died intestate.

When you go through the Hindu succession act properly you wont ask for settled laws of any court

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

Yes as per latest supreme court judgement the date of amendment in Hindu succession Act 2005 is applicable retrospectively so even before the amendment date.

Prashant Nayak
Advocate, Mumbai
27245 Answers
88 Consultations

4.4 on 5.0

In that case from your mothers share only.sons will get right as any property of hindu women is her own property she is free to transfer it on her will.

For her share she had made a proper will so no NoC required get it transferred in your names and sell it she won't have a share in your mother's property.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) claim of niece is not valid

2) you should apply for probate of will

3) probate is judicial proof that will is genuine

4) if niece contests then testamentary petition would be converted into suit and may take some years to be disposed of

5) reply to legal notice that she has no share in property as per your mother will

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

1. Assuming that your father died intestate and the property was transferred in your mother's name in the revenue records based on NOC given by her children ( sons & daughters ), then your mother could execute a WILL only for her share in the property.

2. In the alternative scenario, if her children (sons & daughters ) had executed Release/Relinquishment Deed in favour of their mother relinquishing their rights in her favour, then the WILL executed by the mother in favour of her sons' is valid.

3. Your niece ( your deceased sister's daughter ) shall have right over her mother's ( your deceased sister ) share , along with other legal heirs, if your deceased sister had not executed Release /Relinquishment Deed in your mother's favour

4. If your deceased sister had not executed a registered Release/ Relinquishment Deed in your mother's favour, then your niece's ( deceased sister's daughter) claim is legally valid and her executing Release /Relinquishment Deed in favour of her maternal uncles is a must.

Shashidhar S. Sastry
Advocate, Bangalore
4167 Answers
258 Consultations

5.0 on 5.0

If there is a woman her right in ancestral property will be there even after the aforesaid date.yes you need to take her NOC for the Same. Ancestral property rights never exhausts after the death of the principal heir it travels in the decending heirs.

Prashant Nayak
Advocate, Mumbai
27245 Answers
88 Consultations

4.4 on 5.0

Now you are coming out with a will from your mother in favor of her three sons.

You have not talked about this will in your previous posts of this thread.

If you rely upon the Will and anticipate trouble through your sister preventing you from acquiring the property enforcing the will, then you may file a petition seeking probate of will.

Once the court grants probate to the will, you can execute the bequest made in the will accordingly.

Then your sister cannot claim any share in the property that was fully bequeathed in favor of sons alone.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

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