• Legal rights of daughter before amendment of Hindu Succession Act 2005

My father died in 1999. We are two brothers and three sisters. We have 0.5 acres of ancestral property and 2.0 acres of father's self earned agricultural property. I am eldest son.in the family. All my sisters are married off before my father's death. I wanted to dispose a part of land to build a house in the memory of our parents. Last month (March, 2018), . My sisters asking for property share. Since my father died before the amendment of law 2005,, can they claim share in the property?. Kindly advice
Asked 4 years ago in Property Law
Religion: Hindu

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16 Answers

1. if your father has died after 2005 then only your sisters have share in the ancestral property , otherwise not.

2. Since in this case he does much before your sisters have no share in the ancestral property though they have equal share in the self acquired property of your father.

3. In that event make a mutual deed of partition so disputes are settled amicably and you can enjoy your due share peacefully.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1) Yes, in the self acquired of fathers 2 acres they have share in it, however in ancestral property they have very limited shares.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Dear Sir,

Your sisters have no share as your father is died in the year 1999. It is as follows.

Supreme Court sets 2005 cut-off on women right to ancestral property

The court said the father would have had to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings.

In a ruling that will restrict the right of women seeking equal share in ancestral property, the Supreme Court has said that the 2005 amendment in Hindu law will not give property rights to a daughter if the father died before the amendment came into force.

The court held that the amended provisions of the Hindu Succession (Amendment) Act, 2005, could not have retrospective effect despite it being a social legislation. The court said the father would have had to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings.

The Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on September 9, 2005.

The apex court judgment has now added another disqualification for women regarding their right of inheritance. Until now, they could not ask for a share if the property had been alienated or partitioned before December 20, 2004, the date the Bill was introduced. This judgment makes it imperative for the father to have been alive when the amendment came into force.

Settling the law in the wake of a clutch of appeals arising out of high court judgments, a bench of Justices Anil R Dave and Adarsh K Goel recently held that the date of a daughter becoming coparcener (having equal right in an ancestral property) is “on and from the commencement of the Act”.

The bench overruled the view taken by some high courts that the amendment being a gender legislation that aimed at according equal rights to the daughter in ancestral property by removing discrimination, should be applied retrospectively.

Interpreting statutory provisions, the top court shot down the argument that a daughter acquires right by birth, and even if her father had died prior to the amendment, the shares of the parties were required to be redefined.

“The text of the amendment itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement’ of the amendment Act. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text,” it said.

Further, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intent, noted the court, adding “even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature”.

About applicability of the amendment to the daughters born before it was brought, the bench held that the new law would apply irrespective of the date of birth.

“All that is required is that the daughter should be alive and her father should also be alive on the date of the amendment,” it said.

The court also held that alienation of ancestral property, including its partition, which may have taken place before December 20, 2004, in accordance with the law applicable at that time, would remain unaffected by the 2005 amendment, and those partitions can no longer be reopened by daughters.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

The sisters have share in the ancestral property even before the amendment of 2005 in case you want to dispose happy property you need to take NOC from your sisters to dispose off the property

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Hi,

They may claim share in property.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Daughters have no share in ancestral property as father died before 2005

2) however they have equal share in self acquired property of deceased father

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

The daughters can claim right on self earned property of father the amendment is to the effect of coparcenary property. But under hindi succession act on intestate death of father daughter were always eligible for share in self earned property.

Also if the ancestral share is divided and was name of your father that shall also be as his property and she can ask share.

The amendment of 2005 hindi succession act under section 6 was for the coparcenary property the daughter always had right on self earned property of father. The self earned property on intestate death distributed as mentioned under section 8 hindi succession act on class one heirs that are wife children and parents.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Hello Good Morning,

Yes they can clain the share of the property if it is a selfaquired property.

Hope this helps.

Regards.

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

No they can't both need to be alive on date of amendment as per Supreme court judgement.

Prashant Nayak
Advocate, Mumbai
27273 Answers
88 Consultations

4.4 on 5.0

Hi

1) The succession is deemed to have opened in the year 1999 and the points have to be considered with prevalent succession laws in the year 1999.

2) By virtue of Hindu Succession Act 1956, in the event of your father passing away with out leaving any WILL(Intestate), then the daughters are eligible to claim equal share as that of son in the self acquired properties of your father as they are Class I heirs under Hindu succession Act and

3) By virtue of Tamil Nadu Hindu succession Act amendment coming in to force [deleted], daughter's who are unmarried as of [deleted] are also entitled to claim a share of ancestral property of your father.

4) Hindu succession act 2005 has modified the tamil nadu Amended hindu succcession act by removing the distinction between married and unmarried daughter's. So in your case still TN Amended succession act will play a major role as succession opened in the year 1999.

5) However in your defense, you can raise the following points.

a) Succession opened up in 1999. Properties of father were managed by Son's.

b) Since daughter's have been married prior to 1999 but they are claiming partition after 19 years. (Law of limitation and adverse possession claims by you will be a good defence in your case).

c) Marriage expenses of daughter's should be considered at the time of settlement of claims and

d) if both the ancestral and self acquired properties are side by side, then the self acquired properties have been blended with ancestral properties and put in to common hotch potch there by changing the character of self acquired properties to that of ancestral.

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

Hi, as per the latest Supreme Court Judgement, daughters have right over the property. so you must give them there share in the property.

Pradeep Bharathipura
Advocate, Bangalore
5399 Answers
310 Consultations

4.5 on 5.0

Even though your father inherited some properties from his father, it cannot be said to be ancestral property.

They also become his own and absolute property.

Hence upon his intestate death all his properties shall devolve equally on all his legal heirs.

Therefore your sisters are entitled to a legitimate share at par with her brothers as a right.

You cannot deny or deprive their rights.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Hello,

The amendment relates to the ancestral property and if your father passed away without a will then they can claim share in the self acquired property of your father.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

In one case decided by the Madras HC, a male hindu died during 1959, the court by invoking s.6 read with S.8 of the act decided that the daughters and widow would constitute class-I legal heirs and entitled to the respective shares in their rights as coparcener.

In your case, as the property has not been partitioned prior to 1956 and the death is after 1956, the daughters are entitled to their respective shares by the operation of S.6 of the act.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

1. Ancesralproperty is defined as the property flow of tile of which has nort been interrupted for 4 generations by any deed of conveyanece or will.

2. If the said property is ancestrral property as defined above, your sisters will not have any share thereupon since your father has died before the year 2005. However, they will have their claim on the self acquired property ofnyour father.

3.If the said properties are not ancestral properties as defined above, then your sisters will have legal right to lay equal claim on all the properties left by your late father without executing a will.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

No, if your father had died before the 2005 amendment, your sisters cannot claim any share.

Swaminathan Neelakantan
Advocate, Coimbatore
1923 Answers
20 Consultations

4.9 on 5.0

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