Hello, I would like to clarify some things based on the recent judgement given by supreme court on hindu succession act 2005. My grandfather passed away in 1974 , he had three sons (all married) and 4 daughters (3-married ,1-unmarried) , out of which one son and one daughter have too passed away but i do not know the year of their demise. Now the property of my grand father is on his name and is not yet given to any of the son's and daughter's , also their is no will written by my grandfather. I would like to know whether the daughters will get equal share to the property along with the sons ? I consulted one lawyer in westbengal and he says that daughter's will get equal share along with the son's. But according to supreme court on 9 September 2005, the Hindu Succession (Amendment Act), 2005 (Amendment Act) came into effect and daughters in a joint Hindu family, governed by Mitakshara law, were granted statutory right in the coparcenary property (being property not partitioned or alienated) of their fathers. Historically, the Hindu Succession Act, 1956 (HSA), did not confer any rights on a daughter to the ancestral property of her father. The Amendment Act fuelled a debate on whether a daughter's right in coparcenary property was available even prior to commencement of the Amendment Act, i.e. were the rights granted to daughters in the coparcenary property retrospective in their application? The debate on retrospective application of the Amendment Act has now been put to rest by the recent pronouncement of the Supreme Court (SC) in the case of Prakash & Ors v. Phulavati & Ors, rendered on 16 October 2015. SC, in its judgment, has held that the property rights of daughters are prospective in their application, i.e., to be available only if both the father and the daughter are alive on the date of commencement of the Amendment Act (i.e., 9 September 2005). So if i go by the above statement , then daughter's are not eligible to be sharer in the property. Please clarify , it would be much helpful. Thanks...
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1) the judgment of SC is applicable only in respect of ancestral property
2) it does not apply to self acquired properties
3) on grand father demise his self acquired property would devolve on sons and daughters equally
4) the share of predeceased son and daughter would devolve on their legal heirs
1. The Amendment to the Hindu Succession Act is in respect of the ancestral property only and not in respect of the self-acquired property.
2. Therefore the Daughters are entitled to equal share in their father's self acquired property along with other legal heirs.
3. You can apply the same strategy if the property is the father's self acquired property.
Thank you sir for your reply. Few clarification based on your reply. Hindu succession act 2005 applicable from 9th September 2005 is only applicable to ancestral property and not on self acquired property , this statement is correct ? Also since all the property i.e land is on my grandfather's name , makes it a self acquired property , am i right ? What is the major difference between ancestral & self acquired property ? Is it just that if the property is under somebody's name then it becomes self acquired property , or their are some other reasons ? Also my grandfather died in 1974 , so that fact doesn't make any difference in the judgement since it was a self acquired property ? Why the rule is applicable only for ancestral property and not on self acquired property ? My grandfather while dying has not partitioned any of his land property to any of his sons and daughter's , does this fact makes any difference. Would be really helpful if you clarify the above things. Thanks...
1) If the property is purchased by grand father it is his self acquired property
2) property which had remained undivided for four generations Is ancestral property
3) the date of death of grand father is immaterial
4) since grand father died intestate property would devolve on all sons and daughters equally
You must understand the law properly.
The amendment to HSA came into effect in the year 2005 was for according equal rights to the daughters on the ancestral property and confer them with the coparcenary rights.
This case what you refer above is not about the property of ancestral nature.
The daughters are ot claiming coparcenary rights.
They are entitled to an equal share in their father's properties who died intestate at per with their male counterparts.
Thus the daughters of your grandfather are entitled to an equal share in their father's properties
What is the major difference between ancestral & self acquired property ?
Ancestral property means it shall fall into the hands of subsequent three generations without partition or any kind of transaction to the hands of fourth generation. Self acquired property after the intestate death of the holder, shall devolve equally among the legal heirs of the deceased immediately.
Is it just that if the property is under somebody's name then it becomes self acquired property , or their are some other reasons ?
It has been inherited or purchased or acquired through gift or settlement deed etc are self acquired or own and absolute property.
Why the rule is applicable only for ancestral property and not on self acquired property ?
This question may be answered by the law makers.
My grandfather while dying has not partitioned any of his land property to any of his sons and daughter's , does this fact makes any difference.
It is called as intestate death, thereby all the legal heirs or successors in interest shall be entitled to an equal share in it.