1)Mr. X(Father) had passed away in 2003 without making any Will or transfer of property to children or wife. 2)After death of Mr.X, Wife(Mrs X) and children's (3 Son and 1 Daughter) were enjoying it. Meanwhile Mrs X made an WILL saying, only Son's can enjoy the property after her death and she had given an site(30 * 40) and jewellery to her daughter during marriage. 3)Mrs X passed away in 2008, now Son's want to execute the WILL made by her mother. Daughter has sent a notice saying, she also needs equal partition in the property for which her brothers are objecting and saying, will not give any thing. My question is can daughter ask for equal partition?
1. Since Mr.X passed away intestate his properties devolved through succession equally on his widow and all children. So the widow could make a will only to the extent of her 1/5th share in the properties, not beyond it.
2. The daughter can file a suit for declaration of the will as illegal and also to cull out her share in the property.
1) on demise of husband wife had only one fifth share in property
2) wife can only bequeath her one fifth share in property to her 3 sons
3) daughter can file suit for partition to calm her one fifth share in property
No, she can not claim equal share as per supreme court recent judgment.
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A. As per the General rule of law for sucession that after male hindu died intestate (without Will) that property must be distributed equally between class I legal heirs i.e, Mother, Wife and Children.
B. In your case, your mother i.e, Mrs. X can be executed a will for her respective share not morethan. Hence, Mrs.X's daughter can file an suit for partition for her respective share. However, in case if any Family Settlement deed was executed and she obtained respective share by participating in the Family Settlement deed or Release Deed which is required register. She would be precluded from the share. Therefore, Will may be cancelled through court order and she is entitled to get equal share subject to non execution of Release or Family Settlement Deed.
The daughter is having equal rights in her father's property who died intestate. Now upon the death of her mother, she can claim 1/4th share in the property equal to that of her brothers.
The mother has got no rights to write a will bequeathing the entire property in favor of those persons of her choice because she has only limited share i.e., 1/5th share in it, hence she is not having marketable title to the entire property that she can make a bequest as per her desire.
Therefore the will can be considered as null and void and not enforceable or it may be restricted to her 1/5th share in the property.
In any case the daughter has a legitimate share in the property left behind by her father as one among his successors in interest.
1. Daughter is entitled for equal share along with other legal heirs.
2. Since your father died intestate, his self acquired property belongs to all his legal heirs, I.e., your mother, 3 Sons & 1 daughter in equal proportion.
3. The WILL purported to have been executed by your mother, at best, would be limited to her share/entitlement in the property legally.
4. In the present scenario, the daughter is within her right to claim her legitimate equal share in her father's property.
5.If her brothers deny her the entitled share, she has the right to obtain her share by knocking the doors of Justice.
Thanks for your answer, but I have doubt, can't the equal rights be denied by sons based on new Amendment made by supreme court in 2015 for " daughters claiming ancestor property ", since father(Mr X) passed away in 2003?
Thanks for your answer, but I have doubt, can't the equal rights be denied by sons based on new Amendment made by supreme court in 2015 for " daughters claiming ancestor property ", since father(Mr X) passed away in 2003?
Firstly you should understand that this is not ancestral property and also you should read the so called supreme court judgment properly. A mere hearsay information about the said judgment will not help you tide over any crisis. That judgment is for the coparcenary rights of the daughters in the ancestral properties which had its own technical terms regarding ancestral character of the property.
In your present situation, the property was your father's self acquired property and he died intestate. As per Hindu succession act amended in the year 1956, the daughter have equal rights in their father's self acquired or absolutely own property.
Thus legally the daughter has a right to a legitimate share in the property left behind by the father.
1)it is your father self acquired property
2) on his demise both sons and daughters have equal share in his property
3) judgment of SC is applicable only in respect of ancestral property
The SC ruling applies to only ancestral property, which character does not embrace a property that was self acquired or inherited by the father.
1. The SC Judgement was in respect of Ancestral Property, whereas this is your father's self-acquired property and who died intestate.
2. All the 1st Class legal heirs are entitled to equal share in the self acquired property of your deceased father.
3. No body can deny you the right in your father's self acquired property, since he has died intestate.
1. After the demise of Mr. X intestate in the year 2003, his property will be divided in to 5 parts amongst his wife, 3 sons and one daughter, if the said property is not an ancestral property of Mr.X and has been self earned,
2. If it is an ancestral property, then it will be inherited by the wife and 3 sons of Mr.X,
3. Whatever be the case, Mrs. X can not gift the entire property to anyone since she does not own the entire property legally.
1. If it is an ancestral property, daughter will not get its share since Mr.X died before 2005 as suggested in my earlier post,
2. If it is a self earned property then the daughter will have equal share in it,
3. Supreme Court did not and can not make any amendment to the law. It has given interpretation to the amendment made in the year 2005.
1. The ancestral property is the property title of which has has not changed for 4 generations i.e. from great grandfather to great grandchildren by way of any deed, will, court order etc.,
2. If the said property is not so, then it will be equally be shared by the daughter.