• Share of daughters on ancestral property of father

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.
Asked 4 years ago in Property Law
Religion: Hindu

3 answers received in 2 hours.

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11 Answers

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/.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

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.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Payment related query shall be dealt by the website management kindly directly contact them.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Your sister will not have equal share in ancestral property if father died before 2005

2)latest amendment would also be applicable in your case

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

You can file suit to set aside sale deed

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

1. For daughters to claim equally with the sons as coparcenors of an ancestral property, it is essential that the father must be living on the date when the amendment act came into force

2. That is the father has to be alive in September 2005

3. Since your father passed away before the amendment date, the daughters cannot be called as coparcenors and therefore cannot claim equal share with the sons

4. Now the above is the position under the Mitakshara law. The law is silent on the Dayabhaga law

5. So does that mean the amendment would not apply to an ancestral property governed by the Dayabhaga law?

6. In my view, No

7. It cannot be that the legislature wanted to benefit hindu daughters governed by Mitakshara law and not by Dayabhaga law

8. That would be a violation of Article 14 of the Constitution which confers the fundamental right of Right of Equality and Right to equal protection before the law

9. If the amendment is not extended to Dayabhaga school, then two classes of hindu daughters will be created. One which gets the benefit of the amendment and another which does not

10. That cannot be within the contemplation of legislature

11. However we also need to advert to the Statement of Objects and reasons for the amendment law to ascertain the real intention of legislature

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

Read your comment in feedback

Yes Madam you are right

But if daughters governed by either the Dayabhaga or Mitakshara laws, become entitled to claim as coparcenos, alongwith the son, then on partition, the daughter's share will be reduced to the extent of the moneys already spent on her, like for instance for her marriage function

Obviously law does not want any person to have double benefits

What law wants i equal benefits to both sons and daughters

if daughters become coparcenors, then they will have to account for all the expenses incurred on them by her brothers, at the time of partition

thus the brother's share will increase proportionately to the extent to which the daughter's share will reduce proportionately

its not that the money spent on the sisters cannot be recovered by the brothers at all

Ofcourse on partition the sister's share will be reduced for the expenses spent on her by her brother

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

You can file suit for cancellation of sale deed and partition. Or share in sale consideration acc. to % of holing in property.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The latest amendment in the year 2005 is common for both the schools.

The amendment is not having retrospective effect.

Hence your sisters are not entitled to an equal share in the ancestral properties since your father died before the amendment came into force.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

If they have sold some property claiming equal share and with out my knowledge, can I appeal to cancel such sell deed and get back the excess share sold?

You can file a suit claiming your legitimate share in the property as a right as per your entitlement as per the provisions of law.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

Payment made twice for same question . Please refund Rs 400/- excess paid

You may put this question to the admin directly and not in the forum

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

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