Daughters share in property
jagadish
(Querist) 27 June 2018
This query is : Resolved
My wife is the eldest daughter with 2 younger brothers ( both married). Our marriage took place in april1996. My father in law inherited ancestral property in form of agricultural land from his father. My father in law died in 1977 and my mother in law died in 2000. Now the said ancestral property will be divided between my wife and her 2 brothers. My wife's name is already present in the RTC of land document since her father died in 1977. Now my query is whether my wife has equal share in property with her brothers? The 2005 amendment of Hindu property law is interpreted in different ways by lawyers. We belong to Karnataka state. according to some lawyers since my father in law died in before 2005 my wife will not get equal share but according to some lawyers the recent judgment by supreme court has made it clear daughters have equal share in property since birth. Please advice me as we want to sort out this matter amicably.
Vijay Raj Mahajan
(Expert) 27 June 2018
Yes the daughters get equal share as they got this right from birth.
The non-applicability of 2005 amendment issue arises if the ancestral property got divided amongst the copacenars before coming up of the amendment as in this case there was not division of property before and now it has to be done by the surviving copacenars the daughters get same share as sons.
R.Ramachandran
(Expert) 27 June 2018
I become extremely uncomfortable whenever people mention a property as "Ancestral property", without really understanding what is an Ancestral property. Many a times, it turns out to be a wrong understanding.
Anything based on such wrong understanding will produce only wrong results.
Therefore, first and foremost it is very very important to know, as to on what basis you say that the property in question is "Ancestral".
Only after knowing answer to this, I would like to proceed further.
jagadish
(Querist) 27 June 2018
Sir here ancestral property means the land which is handed over generations and not self aquired. In my wifes case the land is inherited by her father from his father. I hope I am correct
R.Ramachandran
(Expert) 27 June 2018
You say that the property was inherited by your father-in-law from his father.
That is not enough.
1. One should know whether the property was acquired by your father-in-law's father or whether he got it from his father? If got from his father in which year he got it?
2. If he got it from his father, then one has to go further and ask the question, whether his father bought the property or got it from his father? In which year he got it?
For the present, answer to point 1 and 2, I think would be enough, to answer your query.
It may appear odd, but that is the way it is, when one needs to find out about the character of the property.
K Rajasekharan
(Expert) 27 June 2018
The Supreme Court on 16th October 2016 ( in Prakash v Phulavati) declared that the coparcener rights are applicable to “living daughters of living coparceners as on September 9, 2005, irrespective of when such daughters are born” and that the provisions of the Hindu Succession (Amendment) Act, 2005, are applicable “prospectively” on and from 9th September, 2005, when the act came into force.
The court added that all that is required is that the daughter should be alive and her father should also be alive on the date of amendment to get equal share of property for a daughter of a coparcener as that of the son. (Please see the judgement at https://indiankanoon.org/doc/143363828/)
The Supreme Court again on 1st February 2018 (in Danamma v Amar ) held that a daughter’s share in ancestral property could not be denied on the ground that she was born before the law was passed. It added that the law was applicable in all property disputes filed before 2005 and pending when the law was framed.
The question of law considered by the court in this case was whether the daughters could be denied their share on the ground that they were born prior to the enactment of the act in 2005 and cannot be treated as coparceners. The court held that the daughters will become coparceners by birth and they will get coparcenary right since birth as sons. (Please see the judgment at https://indiankanoon.org/doc/88759498/)
jagadish
(Querist) 27 June 2018
So if property is not divided between children before 2005, does the condition that father should be alive apply for daughters to get equal share? Because in the Feb 2018 judgment the supreme court has clearly stated the equal right in property will apply if the partition has not taken before 2005. So why there is ambiguity between lawyers regarding this matter ? I feel sorry to say this ambiguity has led to denial of equal share to daughters misled by the lawyers representing the sons. I feel supreme court and our esteemed lawyers should bring awareness among public.
R.Ramachandran
(Expert) 28 June 2018
Mr. Jagadish,
The 2005 Amendment is applicable only in respect of Co-parcenary (i.e. Ancestral or HUF) properties.
Therefore, without determining whether the property in your case is Ancestral or not, the question of applicability of 2005 Amendment does not arise.
In any case, you have not cared to give information on the 2 questions that I raised.
Please take it, IN YOUR FACT SITUATION, if the property is Ancestral, your wife's share will get considerably reduced. Only if it is not Ancestral, she will get equal share.
Therefore, instead of going on harping on equal share equal share, and repeating that it is ancestral property, it will be in your own interest (IF YOU SO WISH) to first know whether the property is Ancestral or not.
jagadish
(Querist) 28 June 2018
Sir Ramchandran I will answer your previous questions. My Father in law inherited this property from his father(wifes grandfather) when he died in 1948. The property of my wife's grand father was divided between 3 sons one of which is my father in law. My father in law also purchased another property before his death in 1977. So now there are two properties one inherited by my father in law from his father and another which he purchased. As I stated above my mother in law died in 2000 and the said properties were looked after by 2 younger brothers of my wife. Now as the last brother want to get separated and hence demanding the partition. Till date my wife has not received any share or money even though both brothers shared the income between them without sharing the property. Now as they are going for partition my wife wants to claim her rightful share.
I Karnataka especially in the rural side daughters are denied of their rightful share as it is a male dominated society. Some males give just a nominal amount and make their sisters sign that they have received their share. I hope I have answered your questions.
R.Ramachandran
(Expert) 28 June 2018
As your Father in law inherited the property from his father in 1948, the said property is without doubt ANCESTRAL Property.
On the death of your father-in-law, in the year 1977 (Without leaving any WILL), the said Ancestral property will get notionally partitioned by operation of law, in terms of Section 6 of the Hindu Succession Act, 1956. The said property will get divided equally between your father-in-law and his 2 sons.
The 1/3rd portion of the property that will fall to the share of your father-in-law (in the absence of any WILL from him) will go by way of equal inheritance amongst his legal heirs i.e. his mother (if alive, his wife and his sons and daughters).
The property that falls to the share of the sons will continue to be co-parcenary property qua their respective children.
Thus, you will realise that as far as the Ancestral Property is concerned, the Hindu Succession (Amendment) Act, 2005 does not come into play at all, in the above case.
Further more, in spite of the property being an Ancestral property, the female (especially daughters in the family) not getting equal share should not be lost sight of.
Whether the income from the said property was being used exclusively by the sons in the family without giving any portion of it to their sisters etc. etc. cannot be agitated now, mainly due to LIMITATION.
As your mother-in-law has also died in the year 2000 (probably without leaving any WILL) her inherited share will go equally by way of inheritance to her daughter and two sons.
(Therefore your going on referring to HSA 2005, and some of the experts here answering w.r.t. 2005 amendment that the daughters in the family will get equal share in the property etc., was irritating to me).
Now, as regards the property purchased by your father-in-law. (It is not clear whether he purchased from out of his own earnings or from the income of the ancestral property. In the later case, that property will also attain the character of ancestral property and will meet the same treatment as in the case of the first ancestral property.).
However, I assume that the property was purchased from out of his own income and therefore his private/personal property. In the absence of any WILL left behind by your father-in-law, all his legal heirs (i.e. his mother (if alive), his wife and his sons and daughters) will get EQUAL SHARE.
Since your mother-in-law has also died in the year 2000 (probably without leaving any WILL) her inherited share from the private/personal property of your father-in-law will go equally by way of inheritance to her daughter and two sons.
jagadish
(Querist) 28 June 2018
Sir Ramachandran, so the amendment of 2005 will not serve any purpose in getting the daughters equal share in the property unless they are born after 2005 and the father being alive according to you. I am not a expert but the February 2018 supreme court judgement says the date of birth for daughters need not be after 2005. The only precondition for getting equal share for daughters is the property should not have been partitioned before 2005. But according to you the old 1956 law is applied for daughters born before 2005. So this again goes against the will of constitution that there will be no discrimination between male and female.
K Rajasekharan
(Expert) 28 June 2018
There is still confusion in the issue of daughter’s right in the coparcenary property based on Hindu Succession (Amendment) Act 2005 because of twists and turns in the position of the SC.
On 19 April, 2018 the Supreme Court (SC) in Mangamal v T.B.Raju said that on a perusal of the judgment and after having regard to the peculiar facts of the Danamma, it is evident that the SC primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not. In such circumstances, in our view, Prakash v Phuladevi would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property.
Please see the judgement at https://indiankanoon.org/doc/70913397/
R.Ramachandran
(Expert) 29 June 2018
You say: So the amendment of 2005 will not serve any purpose in getting the daughters equal share in the property unless they are born after 2005 and the father being alive according to you.
I have not said anything like that. In fact what I said was that (i) whether or not the 2005 amendment will apply will depend upon the question whether the property is Ancestral or not. (ii) Only if the property is Ancestral or (HUF), the 2005 Amendment will come into play. Otherwise not.
In your fact situation, though the property was Ancestral, but the notional partition of the property had taken place in the year 1977 when your father-in-law expired. At that time, as per Sec.6 of the HSA, the partition had to be notionally done amongst the MALE MEMBERS (who are co-parceners). Daughters in the family were not." The 2005 Amendment came much later.
You say: I am not a expert but the February 2018 supreme court judgement says the date of birth for daughters need not be after 2005. The only precondition for getting equal share for daughters is the property should not have been partitioned before 2005.
YES. in your fact situation, as already indicated, by operation of law (Sec. 6 of HSA), the property stood partitioned in the year 1977 itself on the death of the male co-parcener (i.e. your father in law).
You say: But according to you the old 1956 law is applied for daughters born before 2005. So this again goes against the will of constitution that there will be no discrimination between male and female.
I did not say that the old 1956 law is applied for daughters born before 2005. On the contrary, I said that 2005 Act will come into play only if the Ancestral property had not been partitioned earlier. However, in your fact situation, the ancestral property stood partitioned in the year 1977 itself on the demise of your father-in-law. Therefore even if you try to apply the 2005 amendment, it will not serve the purpose as one of the conditions for application of 2005 amendment is that the property should not have been partitioned. That condition does not get fulfilled in your fact situation. (If in applying the particular law - which has been enacted according to the Constitution - somebody does not get the benefit, it cannot be called any discrimination!)
jagadish
(Querist) 29 June 2018
Sir Ramachandran So it comes back to same point. The death of father creates notional partition even though there is no actual division and registration or change in RTC. If the rule of notional partition is applied majority of daughters will be denied equal share. In law there should be written document for any rights over property so I don't understand the concept of notional partition. So finally why the ammendement of 2005 was done? Experts please explain.
R.Ramachandran
(Expert) 29 June 2018
The 2005 Amendment was done to remove gender discrimination.
Having said that, satisfy the conditions prescribed under the 2005 Amendment. As per the SC decision, the father and the daughter claiming to be a co-parcener should be alive on 9.9.2005. (Are you fulfilling this condition?)
If your contention has to be accepted, then why you have to wait upto 2005 amendment by the Central Govt. Even the Karnataka Govt. had carried out HSA Amendment in the year 1994. You could not claim benefit under that because of certain conditions incorporated therein. Similarly, if in the 2005 amendment, if you cannot fulfill certain conditions, you cannot claim any benefit.
K Rajasekharan
(Expert) 01 July 2018
The question is partly about the differencing views of the judgments as that of the solution to the issue.
The unending saga of twists and turns in regard to the rights of the coparceners, particularly of daughters, continues. Many of such issues in Hindu succession remain unsettled. But the courts, including the Supreme Court (SC), bring out contrary views intermittently.
Therefore, kindly check the facts here with the judgment in the Danamma v Amar case issued by the SC ( https://indiankanoon.org/doc/88759498/ ) on 1st February this year.
In the above case, when a father-coparcener died in 2001 leaving behind his wife, two sons and two daughters as descendants, the SC allowed the daughter-coparceners 1/5th of shares each, recognizing them as coparceners “since birth”, in a suit filed in 2002 by invoking the Hindu Succession (Amendment) Act 2005.
The SC says the coparcenary rights of the daughter crystallized in 2005 based on the amendment which stipulates that “on and from” the commencement of the 2005 act, the daughter “by birth” becomes a coparcener as the son with equal rights. The court says the very “factum of birth” creates the coparcenary right first and the devolution of property occurs on the death of the father coparceners later.
It seems the facts of the issue here and the case above have some close similarities. Since the partition has not taken place before 20th December 2004, it seems the issue here can be pleaded reasonably based on the judgment.
As the judgment says, the law may remain unchanged but the interpretation may change - in favour of the woman far more in the years to come.
The inclusion of Section 6 of the successions act was in fact an inappropriate, retrograde step as wholly against what was proposed by the B N Rau committee while enacting the law in 1956.
We have to contain the inequity or inhumaneness of the provision in regard to equal rights of woman, by reading down the law to the possible extent.
jagadish
(Querist) 02 July 2018
I sincerely thank all the experts for shedding light in my wife's case.
