• Division of property

Dear Sir,
I am prodip from kolkata. My father died in the year 1996. He has left behind my mother, me only son and two married daughters.  He also left behind some property out of which one is self acquired and others from ancestor. All are in the name of my father. The property is till now undivided. Now my query are- 1. according to the latest Supreme Court Judgement on 16th October 2015, are my sisters eligible to my father's property and 2.If yes, how much. I have discussed with some lawyers but not getting proper or logical answers.
Asked 12 months ago in Property Law from Kolkata, West Bengal
Religion: Hindu
1) on your father demise you have one fourth share in your father self acquired properties

2) please clarify on what basis you say it is ancestral property 

3) merely because it was owned by your grand father and your father inherited on your grand father demise would not make it ancestral property 

4) if it was ancestral property your sisters would not have share in ancestral property as your father died before 2005 
Ajay Sethi
Advocate, Mumbai
23234 Answers
1219 Consultations
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Say on what basis you call the property ancestral. If your father died before 9th September 2005 then your sisters do not qualify to get a share in the undivided ancestral property, whereas their share in the self acquired property of your father does not have a nexus with his date of demise.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
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1. The latest supreme court does not have any application since the Bengalis are governed by Dayabhaga school of succession and not by Mitakshara school of succession.
2. The Supreme Court dealt with Mistakshare school of succession which is applicable in rest of India.
3. In other words all the properties left by your father is liable for division in equal shares among all of you.
Devajyoti Barman
Advocate, Kolkata
5196 Answers
54 Consultations
4.9 on 5.0
First you have to check the property comes under the purview of 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.

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 property is not ancestral each of the person can get 1/4th share .The Hindu Succession Act 1956 did not give daughters the right to inherit ancestral property, unlike their brothers who were considered sole heirs. Women could only ask for sustenance from the family. This changed with an amendment that came into effect from September 9th, 2005. While this was seen as a huge victory for Indian women, the Supreme Court's latest stance has left many disheartened, while the same condition does not apply to a woman's male siblings or the male heirs of the family. A bench of Justices Anil R Dave and Adarsh K Goel held that the date of a daughter becoming coparcener is on and from the commencement of the Act.

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
1915 Answers
19 Consultations
5.0 on 5.0
Your sisters have equal rights in your father's self acquired intestate property and they will be entitled to an equal 1/4th share in it. 
As far as ancestral properties are concerned, if the properties in the possession of your father at the time of his death was his share in the so called ancestral properties, then as per the amended law which came into effect, the daughters also have an equal share in it to hat of the sons, and if the property remains not partitioned as on the effective date of amendment in the year 2005, then the married daughters too have a right for an equal share in the property to that of the sons. That was since the ancestral  properties remain as not partitioned, your married sisters are entitled to a legitimate share in it equal to that of  your share in it. 
Even otherwise since your father acquired the property as his share from his father, it becomes his own property and since he died intestate, the law of intestate succession as per Hindu Succession act will operate, accordingly your sisters would be eligible for a share in the properties equally.
However the relevant property documents are to be seen for more proper opinion. 
T Kalaiselvan
Advocate, Vellore
14008 Answers
127 Consultations
5.0 on 5.0
 Now my query are- 1. according to the latest Supreme Court Judgement on 16th October 2015, are my sisters eligible to my father's property
In my opinion the referred judgement may not be applicable to your case.

 and 2.If yes, how much
Your sisters shall be entitled to an equal  share in your father's intestate properties.
T Kalaiselvan
Advocate, Vellore
14008 Answers
127 Consultations
5.0 on 5.0
1. You come under Dyabhaga school of Hindu Law,

2. The said Supreme Court Judgement has clearly mentioned that the case was about Mitaksara school of Hindu Law in its Judgement,

3. So, as of now your sisters will equally share your father's property till similar Judgement comes in connection with succession of properties as per Dayabhaga school of Hindu Law also.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
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A. As per the law of sucession under the Hindu Law, when a father died intestate (without will) that alll the class I legal heirs will acquire equal rights in respect of Self acquired Property. Therefore, you sisters are also having equal right over the property.

B. In your case, you have been highlighted some portion of property belongs to ancestral, on what basis you are coming to conclusion that this property belongs ancestral is still arcane.

C. Recent Supreme Court unequivocally clinched that famale heirs will not get any share over the ancestral property if the father died before 2005. And it is completly applicable to Mitakshara School of law not Dayabaga.
B.T. Ravi
Advocate, Bangalore
736 Answers
29 Consultations
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