Mohit shah - judgement of 14th aug 2014 on daugher's right in coparcenery
Samarth
(Querist) 20 August 2014
This query is : Resolved
Dear Sirs,
In the above judgement the media had mentioned that the only criteria for the daughter to claim equal rights to a son is that -
1. she should be alive on Nov 2005.
2. the status of property should be joint.
However on going through the judgement it appears that one of the other condition is also that the Father should be alive on Nov 2005.
Can you please clarify.
Also, What exactly defines if a property is Joint? The daughter if married will stay with the husband and not with the father or brother. She may not even be on speaking terms. So what is the definition of a joint property in this context?
Thanks.
ROHIT SHARMA
(Expert) 20 August 2014
1. S. 6 was inserted in the Hindu Succession Act, 1956 in 2005.
2. The provision contends that if the the alienation or partition of such has taken place before 20th Dec, 2004 then no case can be made out for claiming the co-parcerner right by a daughter.
3. It is not necessary that the father should be alive as on Nov, 2004. Yes, the property needs to be held as undivided.
Samarth
(Querist) 20 August 2014
The judgement states -
"The High Court held that the law applicable before 1956 would govern the rights of the parties and not the provisions of 1956 Act. In the appeal preferred by the sisters, the Supreme Court held that the succession having opened in 1989 on the death of Baburam, evidentally, the Hindu Succession Act, 1956 would apply and the provisions of the Amendment Act of 2005 would have no application."
So the succession opens only at the time of the death of the father. If he has died prior to 2005 the succession had already opened.
Secondly my query is - How does one determine if the property is coparcenary or not at a time of 2005?
Samarth
(Querist) 21 August 2014
No really Sir. This is for a very close friend of mine.
My Friend is in a situation where his Aunties are asking for the rights in the property equal to their brother.(Father of m Friend)
This is for a Ancestral property in Mumbai.
Their father had expired in 1989.
Also the Father of my friend expired in 1999.
Aunties are married and staying separately and not as a joint family.
Request your advise please. Thanks.
ROHIT SHARMA
(Expert) 21 August 2014
Dear Mr. Samrath,
1. I did reply earlier. But as i can read the S.C. has erred in reading the scope and application of the Amendment made in the H.S. Act, in 2005.
2. The s.6 inserted in such H.C. Act, has expanded the scope of daughters to be deemed as co-parcerners in the joint Hindu family which has had not been divided until Dec 2004.
3. For the daughters to deemed as co-parcners the property need to be undivided and must be ancestral property and not that which has been of self acquired nature by the preceding intestate.
4. I am still not much clear about the background of the case. It needs to be elaborated and discussed.
5. If you have the time and resources you can at your pleasure seek to contact this lawyer.
6. My contact details can be got by clicking the green button shown near the name of the expert (mine) shown in the L.H.S. margin of this reply format.
