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Married women right on parental ancestral property

(Querist) 10 April 2020 This query is : Resolved 
My Question is -

As of now My mother and my grandfather both are living. My Questions are Can my mother get her share in that agricultural land? My maternal grandfather(Nana) has 3 sons and 1 daughter where my mom is the only girl in family.

Raj Kumar Makkad (Expert) 10 April 2020
1. Yes.

2. Not now but after demise of her father.

3. You have not heard correct legal position. Your mother even in that condition file a civil suit and can get set aside any or every document vide which her share stands denied to her.
Dr J C Vashista (Expert) 11 April 2020
1. & 2. Yes, she has 1/4th share in the agricultural land and should file a suit for partition in civil court of her parental district, where property is situated. She should seek a permanent injunction restraining her parents/brothers to create a third party interest in the property .
3. It is not true, your grandfather can/may execute a will for his share (only his share) which shall be applicable after his death.
Dr J C Vashista (Expert) 11 April 2020
It is advisable to consult a local prudent lawyer for appreciation of facts/ documents, professional guidance and necessary proceeding.
P. Venu (Expert) 11 April 2020
How is that the property is ancestral? May be, the grandfather would have inherited from his ancestors, but it could still be self-acquired.
Deeksha nayyer (Querist) 11 April 2020
Deeksha nayyer (Querist) 11 April 2020
property is ancestral only.

Pls clarify my confusion ..
KISHAN DUTT KALASKAR (Expert) 11 April 2020
Dear Sir/Madam,
Agreeing with the opinion of other experts, I put forward the following few lines your reference.if necessary
Please CLICK LIKE and follow me if my information is convincing

Your mother can claim share in her ancestral property from her parents side. Even if she born before 1956 as per recent Supreme Court judgment she is entitled for equal share to that of her brother. You may take GPA/POA on her behalf and file a suit for partition.
What is an ancestral property?
Legally speaking, an ancestral property is the one which is inherited up to four generations of male lineage. The right to a share in an ancestral property accrues by birth itself, unlike other forms of inheritance, where legacy opens upon the death of the owner.
The share of father and son in ancestral property
A father (current owner of the ancestral property) and his son have equal ownership rights over the property. However, the share of each generation (the father and his siblings) is decided first after which the successive generations have to subdivide the portion inherited from their corresponding predecessor.
The share of sons and daughters in ancestral property
The Delhi High Court had ruled in 2016 that an adult son had no legal claim on his parents' self-acquired property. “Where the house is a self-acquired house of the parents, a son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents up to the time the parents allow” said the order.
Once an ancestral property is partitioned between the family members, it would cease to be ancestral property. A father has a choice to not will-out his self-acquired property to his son. However, this is not valid in case of ancestral properties.
The Hindu Succession (Amendment) Act, 2005 confers the status of a coparcener on daughter giving equal rights (with the son) on an ancestral property. Only male members of the family were coparceners prior to the amendment which has modified the Section 6 of the original Hindu Succession Act of 1956 that did not mention daughter's right in a coparcenary property.
Some facts about ancestral properties
*The right to a share in an ancestral property comes by birth.
*Coparceners, including daughters can seek a partition and sale of the ancestral home as well secure his or her share.
*Referring to Ajinkya’s question above, properties of the paternal ancestors cannot be sold without the consent of the successors. However, it can be reclaimed by filing a suit for partition in a court.
Similarly, if your share is denied you can send a legal notice demanding your rights.
*The property is regarded as an ancestral property provided it is not divided by the members of a joint Hindu family.
*Once the inherited property is partitioned, the share received by each coparcener becomes his or her self-acquired property.
*Properties acquired from the maternal side does not qualify to be an ancestral property.
*The head of a Hindu undivided family has the power to manage the family assets under the Hindu law. But when it comes to ownership and rights over an ancestral property, each coparcener is entitled for getting his or her share.

Deeksha nayyer (Querist) 11 April 2020
Thank you everyone fir such a detail explanation especially Krishan Sir..
P. Venu (Expert) 11 April 2020
If the property is ancestral, your mother can file the suit for partition now as well. However, if it cannot be proved that the property is ancestral, the suit will be dismissed, resulting in the grandfather being further antogonised. This may provoke him to dispose of the property during his lifetime (by way of gift, will etc........), leaving nothing for your mother nothing to inherit.

Please note that:
- The ancestral property should be four generations old and.
- The property should not have been divided by the members. When the division/partition happens, it becomes the self-acquired property and not ancestral property.
Rajendra K Goyal (Expert) 11 April 2020
You asked:

Q1. Can my mother get her share in that agricultural land? My maternal grandfather(Nana) has 3 sons and 1 daughter where my mom is the only girl in family.

Your mother is entitled for 1/4th share in the mentioned above ancestral property of your maternal grandfather.

You asked:

Q2. Can she file the case now if my NANA is living or she can file the case only when NANA dies after some years?

She can file a partition case, if not portioned on request.

You asked:

Q3. I have heard from some people that if my NANA transfer the ancestral property to his sons or make a will, then my mom cannot file the case? Is it true??? Thanks in advance for answers.

Your mother has share in the property from birth, legally her share is not affected by such will.
Rajendra K Goyal (Expert) 11 April 2020
Requirements of Ancestral Property: The ancestral property should be four generations old, not have been divided by the members. After division/partition it becomes the self-acquired property and cease to be ancestral property. Right over property is from birth. The shares are determined for each generation and subdivided for the successive generation.

After the 2005 amendment, the daughter has been recognized as a corparcener and her marital status makes no difference to her right over the father’s property.

It does not matter if the daughter was born before or after 9 September 2005, i.e. as on the date of the amendment to the Act. On the other hand, the father must been alive on 9 September 2005 for the daughter to stake a claim over his property

Raj Kumar Makkad (Expert) 11 April 2020
In the Civil Appeal of U.R.V irupakshaiah vs. Sarvamma & another, the Supreme Court of India ruled that Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is “ancestral property”.

Under the Hindu Law, the moment a son is born, he gets a share in father’s property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth.

By its very nature, ancestral property is coparcenary property and the son is a joint owner along with his father (when he is alive), i.e., he can not have exclusive or sole right to the entire ancestral property.

Normally therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him.

In the light of the above (limited) discussion, it can be observed that the son, in the capacity of a coparcener in the ancestral property, is not barred from making claim while his father is alive. But such claim shall have to be limited to his share only. The son worde used above also includes daughter since inception of HSA 2005
Rajendra K Goyal (Expert) 12 April 2020
Expert Raj Kumar Makkad has given a good ruling on the subject. Author may be benefitted. To summarize:

Due to the 2005 amendment in the Hindu Succession Act, 1956, daughters are given an equal share in parental property.

In case of ancestral property, a daughter has a share in it by birth, while in self-acquired property is distributed as per the provisions of the will and in absence of such will daughter has equal right in both ancestral and self-acquired property.

Married daughter has same rights as an unmarried one.
Deeksha nayyer (Querist) 12 April 2020
Thank you Everyone for such a brief explanation
Deeksha nayyer (Querist) 12 April 2020
Raj Kumar Makkad (Expert) 12 April 2020
You are always welcome Deeksha.
T. Kalaiselvan, Advocate (Expert) 12 April 2020
You say that it is ancestral property whereas you should understand the law tht once the property had been partitioned and acquired by the successors as their respective shares in the property then it loses its ancestral nature, therefore it cannot be termed as ancestral property instead it can be defined as yor grandfather's own and absolute property.
Therefore your mother cannot claim any share in her father's share of property as a right at least not during his lifetime.
T. Kalaiselvan, Advocate (Expert) 12 April 2020
I dont know if I have to differ with the views of all the experts who have opined that your other is entitled for a share in her father's treating it as ancestral property.
The cited judgment is no doubt an apt citation for reference but how far it will be suiting to the author's circumstances is to be seen which can be decided court alone.
Not to discourage author's anxiety, it would be better to have a consultation with a local lawyer by producing the relevant papers before the local lawyer for a better understanding.

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