Daughter's right on property

This query is : Resolved 

Querist : Anonymous (Querist)
19 January 2020

Do daughter's have same right on father's and/or mother's property if it's ancsetral? Father died before 2005.

Does the same applies to mother's property too? She died after 2006

kavksatyanarayana (Expert)
19 January 2020

under Hindu Succession Act the daughters have also equal share with other legal heirs over the ancestral property.

Sb Karma (Expert)
20 January 2020

Yes she can........All legal heirs are able to get ancestral property.

Raj Kumar Makkad (Expert)
20 January 2020

I differ with the opinion as advanced above by two experts. As the father had died prior to 2005 so daughter had only maintenance right in the ancestral property left by their father which can never be equal to their brothers in any manner but the situation gets change when their mother expired after 2006. In that case, daughters shall inherit equal share as of the sons in the ancestral properties left by their deceased mother.

Raj Kumar Makkad (Expert)
20 January 2020

The law prevailing at the time of the death of the owner of the property is to be taken care of while deciding his heirship.

K Rajasekharan (Expert)
20 January 2020

The 2005 amendment to ancestral property issue applies only to coparcenary property coming under Section 6 of the Hindu Succession Act. Such property passes through the male ancestors alone but not female ancestors. So it applies to father’s property if it is an undivided ancestral property but it does not apply to mother’s property just because devolution of ancestral property is though male descendants only.

Once an ancestral property is divided each portion devolved to every successor will become a non-ancestral property as declared by the SC in some cases.

A daughter is eligible for equality if the case was there in 2005 or the father was living then. Otherwise she may not be eligible for equal rights as per some case laws of SC. Phulavathi case in 2015 and Danamma case in 2018 are the two important cases in this regard. The two decisions do not go well and leave some confusion as well.

Raj Kumar Makkad (Expert)
21 January 2020

A Hindu Undivided Family (joint family) is governed by the two schools of Hindu Law viz; Mitakshara and Dayabhaga. (The Dayabhaga school is prevalent mainly in West Bengal and Assam whereas the Mitakshara school is prevalent in most of the other parts of India.)

Prior to the 2005 amendment in Section 6 of the HSA, under the Mitakshara school of Hindu law, only male members descended from a common ancestor such as sons, grandsons and great-grandsons could be coparceners and had an interest by birth in coparcenary property. Daughters albeit members, were not coparceners (and hence were not entitled to demand partition).

Prior to the 2005 amendment, upon the death of a male coparcener, his interest in the Mitakshara coparcenary property, would devolve by survivorship upon the surviving members of the coparcenary, except if the deceased had left surviving him, a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative.

Thus, even prior to 2005, while daughters of male coparceners may have inherited a share in HUF property, such share would have devolved upon her (as a class 1 heir along with other heirs mentioned above) from the share which her father (who was a coparcener in the HUF) would have had in the HUF property at the time of his death and not to her own separate share as a coparcener.

However now, by virtue of the amendment to the HSA, such discrimination has been removed and a daughter of a coparcener shall:

(i) by birth become a coparcener in the same manner as a son,

(ii) have the same rights in the coparcenary property as she would have had if she had been a son,

(iii) be subject to the same liabilities in respect of the coparcenary property as that of a son

(iv) be entitled to demand a partition of the HUF.

However the amendment shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property that had taken place before the 20th day of December 2004.

The Supreme Court in Prakash & Ors Vs. Phulavati & Ors, held that the amendment to the HSA is prospective and is applicable to a living daughter of a living coparcener as on 9 September 2005 (i.e. at the commencement of the Amendment Act), irrespective of when such daughter was born provided that any disposition or alienation including partitions which may have taken place before 20 December 2004 as per law applicable prior to the said date will remain unaffected.

T. Kalaiselvan, Advocate (Expert)
Click to Talk
29 January 2020

The property that belonged to mother do not come under the ancestral category.
The daughters have equal rights on their father's properties if he is reported to have died intestate, at par with the sons.

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