My father died in 2001 leaving behind ancestral property governed under Dayabhaga law. According to supreme court judgement, daughters shall have only some portion of the property as sustenance ; not equal right since the father died before amendment of Hindu Succession Act 1956. The latest Supreme court judgement conferred equal right to daughters as coparcener by birth relating to properties governed under Mitaksara law. Supreme Court did not say any thing further on Dayabhaga law. Question 1. Whether the latest amendment is also applicable to Dayabhaga law.Question 2. Whether my sister's will get equal share in ancestral property even though my father died before the amendment. Please remember, the query is on property governed under Dayabhaga law/principle.
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If they have sold some property claiming equal share and with out my knowledge, what will be my step?
Can I get back the property under Dayabhaga principle?
Nil
1. Yes the amendment of the 2005 Hindu succession act is applicable on the Dhayabhaga school also.
2. In case the father expired before 2005 and the nature of the property is ancestral sisters will not get any share since partition already open in the year 2001 at death of father at that time there was no share of the daughter. So in view of Judgement of Prakash vs. Phulwati the amendment shall not apply in your case and they wont get equal share/.
If such sale is made then in that case a suit for cancellation of such shall can be filed in the civil court of the local jurisdiction.
Latest amendment is also applicable in your present case
2) sister woukd not ha e equal share in ancestral property
You can file suit to set aside sale deed
Dear Client,
2005 amendment is related to Mitaksara, Dayabhaga untouched.
On father`s death, both son and daughter inherit as tenants-in-common. Daughters also get equal shares along with their brothers.
Sale can be assailed in court as without authority and participation of co tenant - joint owner.
Through partition , you can claim your share.
Even if it is ancestral property, since your father died in year 2001, the daughters do not have any rights in the ancestral properties since the amendment came into effect in the year 2005 and it has no retrospective effect.
However your sisters are having a right in the proeprty that has been on your father's name and has been left intestate.
If they have sold some property claiming equal share and with out my knowledge, what will be my step?
You can file a partition suit and claim partition and separate possession of your legitimate rights in the properties left behind by your father.
You can implead the subsequent purchasers as necessary parties to the suit.
Can I get back the property under Dayabhaga principle?
It depends on how you present your arguments before court an convince the court your case and the merits in your side.