Anonymous
Asked October 18, 2016

Rights in property

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My grandfather had two wives(both of them died). First wife had 1son and 1 daughter and 2nd wife had 4 daughters and 3 sons. This land is 100 year old. There is no will. As my father is first wife son. As my grandmother(1st wife died before 1950) so he married 2nd wife(died on 2016). Since my grandfather is died (1991) before commencement of Hindu succession (Amendment) Act 2005 so property will be shared only among sons right how daughter will get right on it

Answer 1

Since your grandfather married twice and both his marriages were legal, all his sons have a share in his property. However, his daughters cannot inherit a share in his property by virtue of the latest development in the Hindu Succession Act about a daughter’s coparcenary rights in her father’s property and vide Section 8 of the Hindu Succession Act, 1956.

The Apex Court, in a landmark judgment[1], has pronounced that the Hindu Succession (Amendment) Act 2005 shall not be effective retrospectively. The Court held that the right of a woman in her father’s property exists only if the father were alive on September 9, 2005. The 2005 amendment cannot be retrospective in nature in spite of it being a socio-legal legislation. The judgment clearly states that the date of a daughter becoming coparcener (having equal right in an ancestral property) is on and from the commencement of the Act.[2] Section 8 of the Hindu Succession Act 1956 clearly states that an intestate property shall devolve according to the order of kin in Schedule I of the Act. Thus, the entire property shall be divided into 4 parts amongst the 4 sons from both the wives of the deceased.

Therefore, none of the daughters can ever have a direct share in the property.

 

[1] Prakash and Ors. Vs. Phulwati and Ors., Civil Appeal No. 7217 of 2013

[2] Utkarsh Anand, Supreme Court sets 2005 cut-off on women right to ancestral property, Indian Express (02.11.2015); available at http://indianexpress.com/article/india/india-news-india/supreme-court-sets-2005-cut-off-on-women-right-to-ancestral-property/

 

 
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