1) once partition has taken place before 2005 daughter would have no share in ancestral property
2) Daughters could not ask for a share if the property had been alienated or partitioned before December 20, 2004,
Daughter's share in father's share of Ancestral property
I am currently talking to a reputed builder to buy a property in Bangalore. After i got the set of documents i have a confusion on one legal matter after getting multiple advises. Here is brief description of the problem, builder acquired the land from a landlord whom in turn inherited this property from his father, property came to his father through a partition deed in 2003. So question/confusion is with this partition deed made in 2003 which is legally correct or not. Partition deed is made considering the property as ancestral (Property is certified to be ancestral from legal experts, so lets not debate on that) and they left out the names of 2 of the daughters. Following are the 2 contradicting information that i am getting, So please help me understand which is correct? 1) First one from the builder's legal team are saying that as this is a ancestral property and partition was made before 2005, daughters had no rights so they have left out the daughters name from the partition deed and they are saying it was legally correct 2) Second one is from the legal expert from whom i took the advice for this property, He says that even if the property is ancestral daughter has a share in father 's share of the property, which means in this case father, son get equal shares and in the 1/2 share of father's both son and 2 daughters have equal share, which means daughters get 1/2*1/3= 1/6th of the original property So i wanted to know whether daughters have the rights in ancestral property even though its not equal in 2003 (before 2005) and leaving out their names in the partition deed is indeed legally incorrect as my adviser says? Following are the details i might have missed: ->Partition deed happened in 2003, there is one more partition after that with current person and his children ->Grandfather of the current person died instate during that time ->Current person's father had 2 sisters and no brothers ->We dont know whether sisters are still alive (I think even if they are dead their kids still can claim in their mother's share i guess) -> It comes under Hindu property law Thanks in advance
Asked 8 years ago in Property Law
Religion: Hindu
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5 Answers
If the partition of the ancestral property had taken place earlier to the year 2005 and the women and their father were not alive as on 9th September 2005, then the Partition Deed which was executed in the year 2002 appears to be in order. However without perusing the documents it would be difficult to arrive at the decision.
1. The legal position, as it stood prior to 9.9.2005, was that the daughter will get a share in the share of father but unlike sons she had no substantive share. So a provision had to be made in the partition deed to recognize and award to the daughter her share in the share of her deceased father.
2. On the demise of sisters their heirs can file a suit for partition to cull out her share which devolved on them after her demise.
Hi, As per the Latest Supreme Court ruling, if there is any prior partition and it was registered then daughters have no right to claim share in the ancestral property.
2. Daughters can claim the share in the ancestral property only when father has to alive after [deleted] and there is no prior partition in the family.
3. In your case partition in the family taken place in the year 2003 itself so daughters have no right to claim share in the properties.
The Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on September 9, 2005. The Supreme court has ruled that 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.
“The text of the amendment itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement’ of the amendment Act. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text,
The Supreme court also held that alienation of ancestral property, including its partition, which may have taken place before December 20, 2004, in accordance with the law applicable at that time, would remain unaffected by the 2005 amendment, and those partitions can no longer be reopened by daughters.
Further, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intent, noted the court, adding “even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature”.
From the above it can be evidently seen that the daughters do not have any right to a share in the ancestral property even through their father's share prior to the latest amendment that took place on 9.9.2005 and the said amendment has no retrospective effect. This property was partitioned in the year 2003 i.e., even before the amendment came into force hence the daughters do not have any right to a share in the property whether as it is or even through their father's share.
The second expert's opinion especially giving a formula for partitioning the father's share is ridiculous,there is no such sharing as per Hindu law or even amended law.
All your further questions also are answered in the above lines.
