• Partition suit by daughter during the lifetime of the father

whether in a hindu family a partition suit against  the father by his daughter during his lifetime in respect of ancestral property is maintainable in Guwahati , Assam?? one advocate from Guwahati told me that in Assam Dayabhaga rule is applicable, under which during the lifetime of father his sons and daughter cannot claim partition. 
I have gone through the Hindu succession act 1956 & 2005 but  there the word dayabhaga is not mentioned at all. However Mitakshara is mentioned at section 6.

Please advice me
Asked 2 years ago in Property Law from Guwahati, Assam
Dear client,

1.Yes,  in a hindu family a partition suit against  the father by his daughter during his lifetime in respect of ancestral property only is maintainable in Guwahati , Assam.

2.Yes,Dayabhaga rule is applicable in assam.

3. during the lifetime of father, his sons and daughter cannot claim partition of self acquired property of father.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
1. You have rightly been told that Dayabagha rule prevails in Assam.

2. Under Dayabhaga school of law neither a son nor daughter has any right in the ancestral property until after the death of his father. The Dayabhaga rule does not accord to the son or daughter a right by birth or by survivorship. There is only one mode of succession laid down under it and the same rules of inheritance apply whether the property is ancestral or self acquired of the parents. Neither sons nor daughters have any rights in the family property during their father's life time. 

3. On the death of the father the sons and daughters inherit the property as tenants-in-common. After the life time of father any of chis children can file a suit for partition to cull out his/her share in the property regardless of whether it is ancestral or self acquired.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1) under the Dayabhaga, the father is regarded as the absolute owner of his property whether it is self-acquired or inherited from his ancestors.Dayabhaga prevails in West Bengal, Assam, Tripura and in most parts of Orissa whereas Mitakshara is followed in the rest of India. 
2)  Mitakshara law draws a distinction between ance stral property  and self-acquired properties. In the case of ancestral properties, a son has a right to that property equal to that of his fat her by the very fact of his birth. 

3)According to Section 8 of the HSA, where a male Hindu governed by Dayabhaga law dies leaving property or where a male Hindu governed by Mitakshara law dies leaving his separate or self-acquired property, Class I heirs will inherit his property and in thei r absence class II heirs of the Schedule. 

4) after passing of Hinduu succession amendment act 2005 as far as ancestral properties are concerned hindu governed by Mitakshra law  a daughter also acquires right in ancestral property by birth . she can demand partition .

5) under dayabhaga school of law you dont acquire interest in property by birth . hence cannot demand partition during your father lifetime
Ajay Sethi
Advocate, Mumbai
23339 Answers
1220 Consultations
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You can file a suit for partition under Hindu succession act 1956 and claim your share in your fathers ancestral property.whichever rule applies you will get your share
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
Hindu succession act assure equality inheritance rights between sons and daughters. It applies to all Hindus including Budhists, Jains and Sikhs. It lays down an uniform and comprehensive system of inheritance and .applies to those governed by the Mitakshara and Dayabha schools as well as other schools. The Hindu Succession Act reformed the Hindu personal law and gave women greater property rights, allowing her f ownership rights instead of limited rights in property
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
A. Dayabhaga is applicable in Assam from very olden time.

B.now HSA act 2005 have removed those disparities.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
section 6 of amended HSA 2005 declares that on and from the commencement of this Act, in the joint family governed by Mitakshra law, daughter of a coparcener shall, by birth become a coparcener in the same manner as the son. Consequently, she would have the same rights and subject to same liabilities as that of a son.

since Mitakshra school of law is not prevalent in Assam, daughter does not by birth get share in ancestral property
Ajay Sethi
Advocate, Mumbai
23339 Answers
1220 Consultations
5.0 on 5.0
1. Dayabhaga law is applicable in Assam from time immemorial.

2. Parliament can enact different laws for different parts of the country to address the diverse local needs. You may move the Supreme Court and question the authority of Parliament to do so if you in your wisdom think it is impermissible for the Parliament to do so.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1. Your Advocate is right. Assam is governed by Dayabhaga School of Law wehere sons and daughters do not have any right on the ancestral property during the life time of their father,

2. The customs amongst Hindus are not the same in every part of India and law has been enacted trying to satisfy the prevailing customs of the area including the custom of inheritance,

3. You can get a glimpse of the subject 'Dayabhaga' in Mulla's book,
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
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