Hindu succession amendment act
3 years ago
If father dies before 2005 means befite the commencement of hindu succession amendment act,in that case a married daughter is eligible to claim ancestral property or not?
Sidhaarth
Responded 3 years ago
A.The stated principle applies only to the living daughters of living coparceners who would be entitled to claim a share in the ancestral property. so if grounds so exist daughters are entitled to share in the property. If required consult with detail.
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A.Dear Madam,
The above rule applicable only in case of ancestral property. That is as follows. Please give me Rank 5 if you feel my answer helped you
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Ancestral Properties – Rights of married women.
WOMAN MARRIED BEFORE 1956 ENTITLED FOR SHARE IN ANCESTRAL PROPERTIES OF HER PARENTS.
Your mother can claim share in her ancestral property from her parents side. Even if she born before 1956 as per recent Supreme Court judgment she is entitled for equal share to that of her brother. You may take GPA/POA on her behalf and file a suit for partition.
So, if your father died before 2005, you will have no right over ancestral property, but if he died after 2005, you have a legal claim over it. Moreover, the legal right of inheritance never dies, irrespective of the time elapsed.
What is an ancestral property?
Legally speaking, an ancestral property is the one which is inherited up to four generations of male lineage. The right to a share in an ancestral property accrues by birth itself, unlike other forms of inheritance, where legacy opens upon the death of the owner.
The share of father and son in ancestral property
A father (current owner of the ancestral property) and his son have equal ownership rights over the property. However, the share of each generation (the father and his siblings) is decided first after which the successive generations have to subdivide the portion inherited from their corresponding predecessor.
The share of sons and daughters in ancestral property
The Delhi High Court had ruled in 2016 that an adult son had no legal claim on his parents' self-acquired property. “Where the house is a self-acquired house of the parents, a son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents up to the time the parents allow” said the order.
Once an ancestral property is partitioned between the family members, it would cease to be ancestral property. A father has a choice to not will-out his self-acquired property to his son. However, this is not valid in case of ancestral properties.
The Hindu Succession (Amendment) Act, 2005 confers the status of a coparcener on daughter giving equal rights (with the son) on an ancestral property. Only male members of the family were coparceners prior to the amendment which has modified the Section 6 of the original Hindu Succession Act of 1956 that did not mention daughter's right in a coparcenary property.
Some facts about ancestral properties
*The right to a share in an ancestral property comes by birth.
*Coparceners, including daughters can seek a partition and sale of the ancestral home as well secure his or her share.
*Referring to Ajinkya’s question above, properties of the paternal ancestors cannot be sold without the consent of the successors. However, it can be reclaimed by filing a suit for partition in a court.
Similarly, if your share is denied you can send a legal notice demanding your rights.
*The property is regarded as an ancestral property provided it is not divided by the members of a joint Hindu family.
*Once the inherited property is partitioned, the share received by each coparcener becomes his or her self-acquired property.
*Properties acquired from the maternal side does not qualify to be an ancestral property.
*The head of a Hindu undivided family has the power to manage the family assets under the Hindu law. But when it comes to ownership and rights over an ancestral property, each coparcener is entitled for getting his or her share.
Legal rights of a married daughter over ancestral property….Examples.
‘What are the legal rights of a married daughter over ancestral property seven years after her parents’ death?’ - Tripti Sahu
The Hindu Succession Act, 1956, was amended in 2005 to give daughters an equal share in parental property. In case of ancestral property, a daughter now has a share in it by virtue of birth, while self-acquired property is distributed as per the provisions of the will. If the father passes away without a will, she has the same rights as the son in both ancestral and self-acquired property.
The marital status of the daughter is immaterial, and a married daughter has the same rights as an unmarried one. However, it is important to note that if the father died before 2005, a married daughter will not have any right over ancestral property, while the self-acquired property will be distributed as per the will. So, if your father died before 2005, you will have no right over ancestral property, but if he died after 2005, you have a legal claim over it. Moreover, the legal right of inheritance never dies, irrespective of the time elapsed. So, as a legal heir, you can file a suit in the court to enforce your right to the property even after seven years of your parents’ death.
My father died without a will. While alive, he had transferred properties to my mother and money to children, but without any registered gift deed. My mother is now refusing to give any property to me. Do I have any legal claim over it? — Vineeta Thind
If the father gifts self-acquired property during his lifetime to an individual, the descendants who were not gifted any share in such property would not have any right over it after his death. However, according to the Registration Act, a gift deed for immovable property is required to be registered. If the gift deed is not registered, you may be able to challenge in a court of law and claim your rightful share in that property.
If your mother is not willing to give any share in property to you, including the one in your father’s name, and if there is no will regarding the deceased’s property, it would devolve according to the laws of intestate succession. This means that the self-acquired property will be distributed with first preference to Class I heirs—children and wife— who get an equal share. Your mother, in the absence of a will or a valid gift deed, will not be able to stop you from getting your share.
When our father died without a will, I and my brother submitted a no-objection certificate to transfer the house to our mother. Now, she wants to sell it. Do we have the right to stop her from doing so? — Smita Kumar
When a father (Hindu) dies without a will, the property devolves among his legal heirs, according to the laws of intestate succession. The self-acquired property is distributed with first preference to Class I heirs. If you, as children, have given a no-objection certificate (NOC) to transfer the house in your mother’s name, your right to stop her from selling it will depend on the provisions of the NOC. Assuming that the house has now been fully transferred in your mother’s name, and also assuming that the NOC stated the mother has complete right to deal with the property in any manner she likes, the children will not have any right to stop the mother from selling the property as and when she wishes
The above rule applicable only in case of ancestral property. That is as follows. Please give me Rank 5 if you feel my answer helped you
=======================================================
Ancestral Properties – Rights of married women.
WOMAN MARRIED BEFORE 1956 ENTITLED FOR SHARE IN ANCESTRAL PROPERTIES OF HER PARENTS.
Your mother can claim share in her ancestral property from her parents side. Even if she born before 1956 as per recent Supreme Court judgment she is entitled for equal share to that of her brother. You may take GPA/POA on her behalf and file a suit for partition.
So, if your father died before 2005, you will have no right over ancestral property, but if he died after 2005, you have a legal claim over it. Moreover, the legal right of inheritance never dies, irrespective of the time elapsed.
What is an ancestral property?
Legally speaking, an ancestral property is the one which is inherited up to four generations of male lineage. The right to a share in an ancestral property accrues by birth itself, unlike other forms of inheritance, where legacy opens upon the death of the owner.
The share of father and son in ancestral property
A father (current owner of the ancestral property) and his son have equal ownership rights over the property. However, the share of each generation (the father and his siblings) is decided first after which the successive generations have to subdivide the portion inherited from their corresponding predecessor.
The share of sons and daughters in ancestral property
The Delhi High Court had ruled in 2016 that an adult son had no legal claim on his parents' self-acquired property. “Where the house is a self-acquired house of the parents, a son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents up to the time the parents allow” said the order.
Once an ancestral property is partitioned between the family members, it would cease to be ancestral property. A father has a choice to not will-out his self-acquired property to his son. However, this is not valid in case of ancestral properties.
The Hindu Succession (Amendment) Act, 2005 confers the status of a coparcener on daughter giving equal rights (with the son) on an ancestral property. Only male members of the family were coparceners prior to the amendment which has modified the Section 6 of the original Hindu Succession Act of 1956 that did not mention daughter's right in a coparcenary property.
Some facts about ancestral properties
*The right to a share in an ancestral property comes by birth.
*Coparceners, including daughters can seek a partition and sale of the ancestral home as well secure his or her share.
*Referring to Ajinkya’s question above, properties of the paternal ancestors cannot be sold without the consent of the successors. However, it can be reclaimed by filing a suit for partition in a court.
Similarly, if your share is denied you can send a legal notice demanding your rights.
*The property is regarded as an ancestral property provided it is not divided by the members of a joint Hindu family.
*Once the inherited property is partitioned, the share received by each coparcener becomes his or her self-acquired property.
*Properties acquired from the maternal side does not qualify to be an ancestral property.
*The head of a Hindu undivided family has the power to manage the family assets under the Hindu law. But when it comes to ownership and rights over an ancestral property, each coparcener is entitled for getting his or her share.
Legal rights of a married daughter over ancestral property….Examples.
‘What are the legal rights of a married daughter over ancestral property seven years after her parents’ death?’ - Tripti Sahu
The Hindu Succession Act, 1956, was amended in 2005 to give daughters an equal share in parental property. In case of ancestral property, a daughter now has a share in it by virtue of birth, while self-acquired property is distributed as per the provisions of the will. If the father passes away without a will, she has the same rights as the son in both ancestral and self-acquired property.
The marital status of the daughter is immaterial, and a married daughter has the same rights as an unmarried one. However, it is important to note that if the father died before 2005, a married daughter will not have any right over ancestral property, while the self-acquired property will be distributed as per the will. So, if your father died before 2005, you will have no right over ancestral property, but if he died after 2005, you have a legal claim over it. Moreover, the legal right of inheritance never dies, irrespective of the time elapsed. So, as a legal heir, you can file a suit in the court to enforce your right to the property even after seven years of your parents’ death.
My father died without a will. While alive, he had transferred properties to my mother and money to children, but without any registered gift deed. My mother is now refusing to give any property to me. Do I have any legal claim over it? — Vineeta Thind
If the father gifts self-acquired property during his lifetime to an individual, the descendants who were not gifted any share in such property would not have any right over it after his death. However, according to the Registration Act, a gift deed for immovable property is required to be registered. If the gift deed is not registered, you may be able to challenge in a court of law and claim your rightful share in that property.
If your mother is not willing to give any share in property to you, including the one in your father’s name, and if there is no will regarding the deceased’s property, it would devolve according to the laws of intestate succession. This means that the self-acquired property will be distributed with first preference to Class I heirs—children and wife— who get an equal share. Your mother, in the absence of a will or a valid gift deed, will not be able to stop you from getting your share.
When our father died without a will, I and my brother submitted a no-objection certificate to transfer the house to our mother. Now, she wants to sell it. Do we have the right to stop her from doing so? — Smita Kumar
When a father (Hindu) dies without a will, the property devolves among his legal heirs, according to the laws of intestate succession. The self-acquired property is distributed with first preference to Class I heirs. If you, as children, have given a no-objection certificate (NOC) to transfer the house in your mother’s name, your right to stop her from selling it will depend on the provisions of the NOC. Assuming that the house has now been fully transferred in your mother’s name, and also assuming that the NOC stated the mother has complete right to deal with the property in any manner she likes, the children will not have any right to stop the mother from selling the property as and when she wishes
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Swarbhanu Bhattacharya
Responded 3 years ago
A.The Hon’ble Supreme Court has passed a judgment being Prakash VS PHULVATI[1] in respect of whether the amendment of 2005 to the Hindu Succession Act (“The Amendment Act”) is prospective or retrospective. The Judgment is passed by the Bench of Justice Anil R. Dave and Justice Adarsh Kumar Goel. The Bench only decided the aforesaid legal issue and left it to all the other Courts to decide all other aspects in the light of this judgment.
“Connected matters have been entertained in this Court mainly on account of the said legal issue particularly when there are said to be differing views of High Courts which makes it necessary that the issue is decided by this Court. It is not necessary to go into the facts of the individual case or the correctness of the findings recorded by the courts below on various other issues. It was made clear during the hearing that after deciding the legal issue, all other aspects may be decided separately in the light of the judgment of this Court.”
The Hon’ble Supreme Court, in the said judgment held as under:
“Rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.”
Thus, for a daughter to claim share in the coparcenary property, both she and her father should be alive on the date of the said amendment. The Hon’ble Supreme Court while coming to this conclusion observed as under:
“If such a coparcener had died prior to the commencement of the Amendment Act, succession opens out on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystalised even if partition by metes and bounds does not take place. It was pointed out that apparently conflicting provision in Explanation to Section 6(5) and the said Section was required to be given harmonious construction with the main provision. The explanation could not be read in conflict with the main provision. Main provision of Section 6(1) confers right of coparcener on a daughter only from commencement of the Act and not for any period prior to that. The proviso to Section 6(1) also applies only where the main provision of Section 6(5) applies. Since Section 6(5) applies to partition effected after 20th December, 2004, the said proviso and the Explanation also applies only when Section 6(1) applies”
The Hon’ble Supreme Court also considered the judgment of the Bombay High Court in Vaishali Satish Ganorkar vs. Satish Keshaorao Ganorkar[2]. The Hon’ble Court held as under:
“In Vaishali Satish Ganorkar vs. Satish Keshaorao Ganorkar, the Bombay High Court held that the amendment will not apply unless the daughter is born after the 2005 Amendment, but on this aspect a different view has been taken in the later larger Bench judgment. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment.”
The Hon’ble Supreme Court also considered the Full Bench judgment of the Hon’ble Bombay High Court in Badrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari[3] and held as under:
“Full Bench judgment of Bombay High Court in Badrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari also appears to be consistent with the view taken hereinabove.”
To conclude in a nutshell, as to whether the Hindu Succession (Amendment) Act, 2005, will have a retrospective or prospective effect, the Hon’ble Supreme Court has held that all that is required is that daughter should be alive and her father should also be alive on the date of the amendment.
[1]2016 (2)SCC36
[2] AIR 2012, BOM 101
[3]AIR 2014, BOM 151
“Connected matters have been entertained in this Court mainly on account of the said legal issue particularly when there are said to be differing views of High Courts which makes it necessary that the issue is decided by this Court. It is not necessary to go into the facts of the individual case or the correctness of the findings recorded by the courts below on various other issues. It was made clear during the hearing that after deciding the legal issue, all other aspects may be decided separately in the light of the judgment of this Court.”
The Hon’ble Supreme Court, in the said judgment held as under:
“Rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.”
Thus, for a daughter to claim share in the coparcenary property, both she and her father should be alive on the date of the said amendment. The Hon’ble Supreme Court while coming to this conclusion observed as under:
“If such a coparcener had died prior to the commencement of the Amendment Act, succession opens out on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystalised even if partition by metes and bounds does not take place. It was pointed out that apparently conflicting provision in Explanation to Section 6(5) and the said Section was required to be given harmonious construction with the main provision. The explanation could not be read in conflict with the main provision. Main provision of Section 6(1) confers right of coparcener on a daughter only from commencement of the Act and not for any period prior to that. The proviso to Section 6(1) also applies only where the main provision of Section 6(5) applies. Since Section 6(5) applies to partition effected after 20th December, 2004, the said proviso and the Explanation also applies only when Section 6(1) applies”
The Hon’ble Supreme Court also considered the judgment of the Bombay High Court in Vaishali Satish Ganorkar vs. Satish Keshaorao Ganorkar[2]. The Hon’ble Court held as under:
“In Vaishali Satish Ganorkar vs. Satish Keshaorao Ganorkar, the Bombay High Court held that the amendment will not apply unless the daughter is born after the 2005 Amendment, but on this aspect a different view has been taken in the later larger Bench judgment. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment.”
The Hon’ble Supreme Court also considered the Full Bench judgment of the Hon’ble Bombay High Court in Badrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari[3] and held as under:
“Full Bench judgment of Bombay High Court in Badrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari also appears to be consistent with the view taken hereinabove.”
To conclude in a nutshell, as to whether the Hindu Succession (Amendment) Act, 2005, will have a retrospective or prospective effect, the Hon’ble Supreme Court has held that all that is required is that daughter should be alive and her father should also be alive on the date of the amendment.
[1]2016 (2)SCC36
[2] AIR 2012, BOM 101
[3]AIR 2014, BOM 151
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A.Hi
Married daughter is eligible to claim a share in ancestral property in the event of father dying prior to 2005, provided she belongs to the following states
1)Tamil Nadu
2) Andhra
3) Maharashtra
4) Karnataka
This is because, these states passed an amendment to Hindu succession act in the intervening years between 1983 to 1993 wherein married daughters were eligible to claim a share of ancestral property.
Hope this information is useful.
Married daughter is eligible to claim a share in ancestral property in the event of father dying prior to 2005, provided she belongs to the following states
1)Tamil Nadu
2) Andhra
3) Maharashtra
4) Karnataka
This is because, these states passed an amendment to Hindu succession act in the intervening years between 1983 to 1993 wherein married daughters were eligible to claim a share of ancestral property.
Hope this information is useful.
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Ayantika Mondal @ Prime Legal
Responded 3 years ago
A.If the property was not distributed or transfer in any form, then you have all the rights. So we need to understand the details of your case.
As per your question, the ruling stated that the amended provisions of the Hindu Succession (Amendment) Act, 2005, do not have a retrospective effect.
As per your question, the ruling stated that the amended provisions of the Hindu Succession (Amendment) Act, 2005, do not have a retrospective effect.
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