• Ancestral property daughters rights - amendment in Oct/Nov 2015

I have the query regarding the following amendment: 
"Daughter can not legally inherit ancestral property if father died before 2005 - By Supreme Court of India, Oct/Nov 2015."

In my case - Father died before Sept 2005 and he did not make any will before his death.
Here 'father/person' is 'sole property owner - earned by himself NOT inherited'.

Questions below:-
Q1. After this amendment what are 'those conditions/clauses still exist' in Hindu Succession Act  which empower a daughter to be a legal claimer of the ancestral property? Complete checklist/details/scenarios required.

Q2. If father/person(property owner - earned by himself NOT inherited) did not make any will before his death. And after his(father/person) death his wife makes her will in advance before her(father/person's wife) death and partition, in the 'will' she makes her(father/person's wife) 'daughter' as her(father/person's wife) legal heir of her(father/person's wife) part of property which she supposed get after the partition among the survivors.Before the partition wife(father/person's wife) also dies. Is this 'will' valid as per the latest Supreme Court amendment i.e. "Daughter can not legally inherit ancestral property if father died before 2005."? Can the daughter use this 'will' to claim legally? OR this 'will' has become legally invalid?
Asked 1 year ago in Property Law from United States
Religion: Hindu
If the property is self acquired property of father then the same is liable for inheritance by daughters irrespective of date of death of father.
The Will is very much valid and Probate can be obtained on this.
Devajyoti Barman
Advocate, Kolkata
5174 Answers
54 Consultations
4.9 on 5.0
1) the judgement of Sc is applicable only in respect of ancestral property 

2) it would not be applicable in respect of self acquired property of your father .yiur father death before 2005 is immaterial 

3) on father demise property would devolve on your mother , you and your siblings equally 

4) your mother can make a will bequeathing her share to whomsoever she desires 
Ajay Sethi
Advocate, Mumbai
23145 Answers
1215 Consultations
5.0 on 5.0
1.The said property is not an ancestral property. However, daughters are entitled to your share of the ancestral property. When Title of a property passes uninterrupted for 4 generations without any sale/gift/settlement/partition deed i.e. from great grandfather t great grandchild, then it is called ancestral property,

2. In the instant case the daughter is entitled to the undivided property willed by her mother before partition and claim for the partition after taking probate of the will.
Krishna Kishore Ganguly
Advocate, Kolkata
12055 Answers
228 Consultations
5.0 on 5.0
Hi, Daughter can't get the share in the ancestral property if partition has taken place before 09-09-2005 and second condition is that if no partition is taken place and if her father died before 09-09-2005. then also she will  not get the property.

2. Daughter can get the share only when partition has taken place after 09-09-2005 and father has alive at that time then only she will get the right over the ancestral property.

3. As far as Q-2 here the property is not the ancestral property and it is the self acquired property of the father and after his demise all the legal heirs has equal right over the property including daughter.

4. When property is disposed by way testamentary succession i.e by way of will then the  Supreme Court judgement will not applicable.

5. Here mother will become the absolute owner of the property in respect of her share then she can dispose of her property to any body including her daughter. 
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
A. In your case,  It is a self acquired property of your father that it cannot be considererd as ancestral property. If you want to establish any property for ancestral, it must have 4 generation without interruption the right.

B. Hence, daughter are having equal right over the property. When a male hindu died intestate (without make a will) that all the class I legal heirs will have equal share over the property.

C. Recent judgement of the Supreme Court doen't applicable in your case, it is applicable only for ancestral property. And your mother cannot execute a will unilaterally because of all the class I heirs are having equal share i.e mother, wife, children etc. In case if she executed any will that would be invalid.
B.T. Ravi
Advocate, Bangalore
733 Answers
29 Consultations
5.0 on 5.0
1. The test to determine whether the daughter has a share in the property or not is the date of demise of father. If father of the daughter passed away before 9th September 2005 then the daughter does not get a share. 

2. The judgment of the SC applies to only ancestral properties. So in case of self acquired property the succession would open if the owner of the property died intestate. In case of intestate demise of a male his property is succeeded to equally by his widow and all children. The wife/daughter of the owner of the property cannot make a will in respect of the property of the latter except after the intestate demise of the owner. If a will is made by her during the lifetime of the owner it is illegal and can be declared so by the court. 
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
Check your property is ancestral or not.

What is ancestral property ?
 Property inherited upto 4 generations of male lineage (i.e., father, grand father, etc.) is called as ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.

 What is not ancestral property ? 
Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties. Self acquired property on the other hand can become ancestral property only if it is thrown into the pool of ancestral properties and enjoyed in common. This is a matter to be determined on the facts and circumstances of the case.

The Supreme Court of India has said that women do not have the right to inherit ancestral property if their fathers died before September 9th, 2005. The view of the Supreme Court is that amended provisions of the Hindu Succession (Amendment) Act, 2005, do not have retrospective effect. The father would have to be alive on September 09, 2005, if the daughter were to become a co-sharer with her male siblings.
Ajay N S
Advocate, Ernakulam
1909 Answers
19 Consultations
5.0 on 5.0
Q1. After this amendment what are 'those conditions/clauses still exist' in Hindu Succession Act  which empower a daughter to be a legal claimer of the ancestral property? Complete checklist/details/scenarios required.
You have stated your situation that the property was your father's self acquired, whereas the question does not relate to that background and this is about ancestral property.
However, please note that the supreme court judgement is not any amendment to the existing law, it is just an interpretation of the amended law which was amended in the year 2005. The referred case, i.e., Prakash Vs. Phulavati was about the retrospective effect of the amendment.
Therefore please be confirmed that whatever amendments took effect to the Hindu Succession law in the year 2005 stands good, there are no changes in it.



If father/person(property owner - earned by himself NOT inherited) did not make any will before his death. And after his(father/person) death his wife makes her will in advance before her(father/person's wife) death and partition, in the 'will' she makes her(father/person's wife) 'daughter' as her(father/person's wife) legal heir of her(father/person's wife) part of property which she supposed get after the partition among the survivors.Before the partition wife(father/person's wife) also dies. Is this 'will' valid as per the latest Supreme Court amendment i.e. "Daughter can not legally inherit ancestral property if father died before 2005."? Can the daughter use this 'will' to claim legally? OR this 'will' has become legally invalid?

Sadly you have misinterpreted the law or have been misinformed but the law.  The supreme court has not made any amendment in the existing law, and supreme court has no power to make any law, the law makers are different people and it is not the job of supreme court.  In he latest judgment by supreme court in the above referred case, it has given clear verdict about the law that has been amended and taken effect from the effective date in the year 2005. As far as daughters' share in the ancestral properties they are bestowed with equal rights to that of the sons in the amended law however it has no retrospective effect. Therefore, as per the ruling of the supreme court, if the coparcener father died before 2005, the daughters who have been made entitled to to the coparcenery rights vide the amended law in the year 2005 cannot claim the same from their deceased father who died even before the amendment came into effect and he said amendment to the central law has no retrospective effect. 
The will you have discussed is totally a different subject irrelevant to the above subject.  Will has got its own meaning and effect. Please remember that a testator can bequeath a property to a beneficiary only when the testator has a title to the said property.
T Kalaiselvan
Advocate, Vellore
13944 Answers
127 Consultations
5.0 on 5.0
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. 

September 9, 2005 is the date when amendment regarding daughter's right in ancestral property came in force. 

if father died intestate then ancestral properties will be devolved according to rules of Hindu succession act and that act (after the recent judgment) does not give daughter a right in ancestral property if her father died (intestate) before 9 sep 2005. 

self acquired property is devolved by rule of survivorship. All legal heirs( son & daughter and wife) are entitled to get it. making WILL by mother on the lifetime of father is void and it has no effect. because at that time mother had no right in the properties mentioned in the WILL.

father is sole and absolute owner of his self acquired properties. 
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
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