• Partition of father's property

Sir, I am a Hindu male, 51 yrs old having a married sister. My father built a house on his purchased land in 1980. He died in 1986. Sister married in 1992 and settled with in laws. My mother stayed there till 2015, when she died due to stroke. The property is still in my father's name. My question is: will my sister get equal part of the property? Will the 2005 amendment act be applicable in this case as my father died before 2005?
Asked 4 years ago in Property Law
Religion: Hindu

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16 Answers

Sir 2005 amendment act is not applicable as property is self acquired property of the father and it shall devolve according to intestate rules of hindu succession act. So your sister shall have equal share in property.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Hello,

After the death of your father your mother has become the owner of the property and as she died after 2005 your sister is entitled to equal share of the property.

Hope this helps.

Regards

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

Yes, your sister will get equal share like you.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1. it appears you are a Bengali since you are from WB.

2. If that is so then you are governed by Dayabhaga School of Succession in which the girl by birth have equal rights in the property of husband with her brother and mother.

3. So on the death of father his property gets devolved on his lega heirs which include his widow and son and daughter in equal share.

4. The amendment which you have mentioned applies to Mitakshahra Schol of success which have no applicability among the Bengali and on the property which is not ancestral in nature.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Firstly, sir the applicability of the act which you are talking about is with regard to the share of the daughters in anscestral property.

Secondly, here the property was purchased by your father himself with his hard earned income.

Thirdly, so if there is no specific will with regard to the same property then would be difficult for you to get the whole as one share only, as it would be divided under the Hindu Succession Act, and your sister would also get equal share.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

1. It is not clear in your letter as to whether your father had executed a "WILL" or your father had died intestate (without executing "WILL").

2. Assuming that your father had executed a "WILL", then the beneficiary/beneficiaries are entitled to the share of your father's self acquired property as per the contents of the "WILL".

3. However, if your father had died intestate (without executing "WILL"), then the property would devolve equally to his children ( since your mother is also dead ). In other words, assuming that you and your sister are the only siblings, then the entitlement to your father's self acquired property will be equal in the ratio of 50% each.

4, Since the property in question is the self acquired property of your deceased father(as per your narration), the 2005 amendment to Hindu Succession Act is not applicable in the instant case and your married sister is also entitled to equal share in the property. The amendment to Hindu Succession Act in the year 2005 is in respect of Ancestral Property and it does not apply to self acquired property.

Shashidhar S. Sastry
Advocate, Bangalore
4173 Answers
258 Consultations

5.0 on 5.0

As it is a self acquired property of your father, you'll sister would have an equal share in the property as the 2005 amendment talks about ancestral property only.

Siddharth Jain
Advocate, New Delhi
5933 Answers
101 Consultations

5.0 on 5.0

it is not ancestral property

2) on father and mother demise your sister would have equal share in self acquired property of deceased father

3) 2005 amendment is applicable only for ancestral property

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

1. the property appears to be self acquired property of your father

2. it is not an ancestral property so the 2005 Amendment will not apply

3. since your father died without making any Will, his property will devolve on the legal heirs as per intestate succession

4. on demise of a male Hindu without a Will, his property goes to widow and children

5. since your mother has passed away, the property will go to you and your sister in equal proportion

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

On a combined reading of Ss 6,8,9 & 10, daughters are entitled to equal share on par with the son. In this case, your sister is entitled to equal share.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

Dear Client,

2005 amendment has nothing to do with daughter share in parent`s property, She has equal share in the property of parents since 1956. She have to execute release deed, to make you absolute owner.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Dear,

No, your sister don't get any part of the property as your father died before 2005.

As per supreme court direction only after 2005 daughter get right in her father's

property.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

This is my response to you:

1. As per Hindu law irrespective of the 2005 amendment, all the legal heirs of the deceased will get equal share of the property;

2. The share will be divided between you, your sister and mother as being class I heirs;

3. Now since your mother died too, her share will be equally divided between you and your sister;

4. Therefore make sure there is no will or gift deed etc.;

5. Obtain succession certificate and get the property divided;

6. If your sister does not want her share, then ask her to give you an NOC.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Yes, your sister can. The section 6 of the Hindu Succession Act was amended in 2005 and gave daughters equal co-parcenary rights to that of sons in joint hindu family property, commonly known as ancestral property.

However, there are two aspects of this. One is that the property to be claimed must be ancestral and not self acquired property of the father, i.e., property should have been devolved to father by way of inheritance and not be property self earned by the father. Secondly, there must not have been a partition of the joint hindu family before 20.12.2004. If a partition has taken place before that date then court cannot undo the partition and give the co-parcenary share to the daughter.

A joint hindu family propety is called ancestral property because it passes on from one generation to another. A joint hindu family system is a patriarchal system consisting of a karta (the eldest male member) and co-parcenars (all other male members of the joint hindu family). Only male lineal acendants or descendants can form part of joint hindu family. Females have only the duty of reproducing male heirs.

Now after 2005 amendment, daughters were given equal status of co-parcenars to that of sons and they could now claim equal rights and share with respect to joint hindu family property.

But there is a caveat that the partition must not have happened before 20.12.2004. Partition is way by which a co-parcenar seeks his share in the property and as soon as the co-parcenar askf for partition then the property is divided and each co-parcenar if given his share. It does not matter whether it is only one co-parcenar or all of them seek partition. Once a partition is ought the joint hindu family breaks and the ancestral property is divided equally amongst all.

This question of partition and thereafter the impact of share of female co-parcenars came to SC in Prakash v Phulavati in 2015. The Court ruled that partition done before 20.12.2004 shall not be disturbed.

I hope this clears your query. Moreover, if the father dies and does not leave a will then in that case the daughter is entitled to equal share in father’s self acquired property , if any, along with share in ancestral property

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

Since this property belonged to your father and he is reported to have died intestate the property shall devolve equally on both you and your sisters

The latest amendment in the year 2005 has nothing to do with this situation.

She is entitled to 50% share in the property as per ,law.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

No it is not applicable as both father and daughter should be living

Prashant Nayak
Advocate, Mumbai
27291 Answers
88 Consultations

4.4 on 5.0

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