• Amendment to Hindu Succession Act on 9 Sep 2005

Hi,
Need an opinion on amendment made by the Supreme Court on 9th Sep 2005 for daughters having equal rights in ancestral property. From when is this amendment in effect? 
My father died in 1998,he had inherited property from my grandfather. I have two sisters both married out of which one is deceased in year 2012. Later the property had gone into redevelopment as the property was old and in dilapidated condition. At the time of redevelopment, agreement was made on my mothers name along with my name and both of my sisters were kept as confirming party in year 2009 mentioning that they have no objection in transferring this flat in name of me and my mother. This agreement is registered as well in 2009. My mother died in 2011. In order to transfer this flat in my name in society records, society has advised that the rights, shares, title and interest in respect of this flat can be inherited by way of Gift deed or release deed. 
My question is : taking into consideration the Amendment made on 9th Sep, 2005,whether this gift / release deed is required to be made as this act is prospectively enforceable and not with retrospective effect.Kindly advise.
Asked 12 months ago in Property Law from India, Maharashtra
Religion: Hindu
1) it is not ancestral property hence your sisters have equal share in property 

2) it was self acquired property of your grand father and on his demise your father inherited the property . Property which has remained undivided fir four generations would be regarded as ancestral property 

3) on mother demise yiu and your sisters  are the legal heirs 

4) you need gift deed or relinquishment deed executed by your sisters 

5) on sisters demise her share would be inherited by her legal heirs 
Ajay Sethi
Advocate, Mumbai
25984 Answers
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Hi, As per the Supreme Court judgement, the daughter can claim share in the ancestral property only on two conditions.

(1)The daughters can claim share in the ancestral property only when father has to alive after 09-09-2005. If the father died before 09-09-2005 then daughters can't claim share in the ancestral property.

(2) If there is any prior partition between the family then daughters can't claim share in the property.
Pradeep Bharathipura
Advocate, Bangalore
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149 Consultations
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1. Amendment to a legislation is within the sole domain of the Parliament. Supreme Court interprets and not amends the laws.

2. The 2005 amendment relates to only ancestral property, whereas the property in your case is the separate property of your father. So the 2005 amendment is not attracted to your case. 

3. Unless your sisters had executed a relinquishment deed in favour of you and your mother they are at liberty to cull out their share by filing a suit for partition. A mere agreement to relinquish share in a property does not result in relinquishment.
Ashish Davessar
Advocate, Jaipur
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the amendment act of 2005 is applicable only to ancestral properties and is not applicable in your case as property is self acquired only 
Ajay Sethi
Advocate, Mumbai
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1414 Consultations
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First thing is that this property will not be affected by the amendment enabling daughters to have equal rights in the ancestral property.
This was your grandfather's property and inherited by your father, it becomes your father's absolute property. Upon his intestate death it devolved on all his legal heirs by which your sisters executed release deed in your favor as well as your mother's favor.  Now your mother's share shall devolve again on all her legal heirs so it is necessary that others need to give their consent in your favor once again.
T Kalaiselvan
Advocate, Vellore
16348 Answers
153 Consultations
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1. The amendment is effected from the date of its enactment and it is prospective and not retrospective,

2. Property is inherited based on legal heir certificate and through deed of conveyance, title of the property is transferred,

3. You and your mother will equally inherit the share of your father's property who died intestate,

4. Your mother's share of the property will be equally inherited by you and your sisters, if your mother has died intestate,

5. You are required to have gift or release deed for your mother's share of your father's property not your father's property.
Krishna Kishore Ganguly
Advocate, Kolkata
13151 Answers
280 Consultations
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