Property rights of tamil nadu women married before 1989


  • My Grandfather acquired an ancestral property on 1967 and not partitioned so far.
  • Grandfather died intestate on 1985 and Grandmother is still alive.
  • They have One Son and One Daughter(My Mother).
  • The daughter(My Mother) married on 1983.
  • We are from Tamil Nadu and property is also located in Tamil Nadu.

Will the daughter have any rights in the property since she married before the Tamil Nadu's 1989 amedment?

Since the Central Goverment's 2005 amendment is direct conflict with Tamil Nadu's 1989's amendment, which one needs to be considered?

 

 

 

 
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Lawyer in Hyderabad.Email:ramachary64@gmail.com

In a ruling that will restrict the right of women seeking equal share in ancestral property, the Supreme Court has said that the 2005 amendment in Hindu law will not give property rights to a daughter if the father died before the amendment came into force.

 
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Retd Sr Director Govt of India/ Advocate

While the daughter is not a coparcener in the instant case, as per the ruling of SC in Prakash & Ors v. Phulavati & Ors, dated 16 October 2015, she is the heir to claim her share as stated herein below.

According to Section 8 of the Hindu Succession Act, 1956, after the death of a male Hindu, who dies intestate, his property shall devolve to his immediate heirs.  The interest that the male had in the coparcenary property, upon his death, is divided equally among all his heirs, that is, his sons, daughters, widow and mother. This property is devolved by the rules of succession, and not survivorship. The Schedule annexed to Section 8 showing Class I and Class II heirs show the son, daughter, widow and mother of a Hindu male dying intestate as his first heirs.

Under Section 6 of the HSA 1956, there is a notional partition which is deemed to have been effected upon the death of a coparcener. The share so separated devolves upon the heirs of the deceased instead of vesting in the coparceners by survivorship.

Section 6 of the Hindu Succession Act, 1956 deals with the devolution of interest in the coparcenary property. It states that when a male Hindu dies after 1956, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary. Also, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Section, and not by survivorship. After 1956, daughters and widows were considered to be heirs, and not coparceners, and they could get their father’s/husband’s share of notional partition on his death. Daughters could get their share only upon their father’s death, and not during his lifetime.

 
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