property division
kapil dehuliya
(Querist) 14 April 2011
This query is : Resolved
i am padma.i am a hindu. my father had a ancestrol agriculturer land of 20 acre. my brother was born in 19/9/1938, i was born in 18/10/56. my father died in 1963. my mother died in 2008. people say that i had my right in property by birth. wise people please tell me what would be my share in 10 acre of ancestrol land,please note that my brother was born in 1938 before hindu succession act 1956. i am confused, diffrent people have diffrent opinions, i need a unbiased advice,
R.Ramachandran
(Expert) 14 April 2011
Since your father, who had interest in ancestral property, died intestate (without leaving any will or gift deed) in the year 1963 (after coming into force of the Hindu Succession Act, 1956), Section 6 of the HSA will be applicable in your case.
First the ancestral property will get divided into two equal parts (i) one part will go to your father and (ii) the other part will go to your brother.
Now since your father has nor left any will, his share in the ancestral property (i.e. half share) will go by way of inheritance equally amongst his legal heirs viz., your mother, you and your brother.
Since your mother also died without leaving any will, her share (i.e. 1/3rd of 1/2 of the original ancestral property) will be inherited by you and your brother equally.
Thus what you will ultimately get is as under:
A. 1/3 x 1/2 of the total ancestral property. (representing your inheritable share from your Father's property)
PLUS
B. 1/3 x 1/2 x 1/2 of the total ancestral property. (representing your inheritable share from your mother's property)
Naresh Kudal
(Expert) 14 April 2011
Agree with expert. In simple words you can now claim for half of the share of your father.
R.venkatesh Naidu
(Expert) 15 April 2011
Mr. R. Ramachandran's advice is not correct. as per hindu suceession ammeded act 2005, every female member has equal right over ancestral property as male member.
The section 6 of the hindu succession (amemdment)act 2005, says:
6. Devolution of interest in coparcenary property.-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
R.Ramachandran
(Expert) 15 April 2011
Dear Mr. Venkatesh,
I value your above answer.
If you will permit me, I would request you to also read the PROVISO to the Amended Section 6(1) of the HSA Act, 1956.
The proviso states that "nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
If you say that in view of the 2005 Amendment, if the daughter will get equal share in the ancestral property, even in respect of a property which stood partitioned prior to coming into force of the 2005 amendment, THEN YOU HAVE TO GIVE PROPER MEANING TO THE ABOVE SAID PROVISO.
Further more, the unamended Section 6 of the HSA 1956 reads as under:
6. When a male Hindu dies after the commencement of this Act, 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 and not in accordance with this Act.
According to the Explanation 1 under the Section 6, "the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not."
Thus, according to unamended Sec. 6 of the HSA 1956, two things will happen on the death of an Hindu having interest in the ancestral property. (i) the property will devolve on the surving male member(s) of the family and (ii) the interest of the deceased hindu member who has left behind female relatives (wife daughter etc.) will go by way of inheritance amongst all his legal heirs i.e. wife (widow), son(s) and daughter(s). THIS TAKES PLACE AUTOMATICALLY UPON THE DEATH OF THE SAID HINDU MALE MEMBER. THEREFORE THE PARTITION TAKES PLACE AUTOMATICALLY.
In the instant case, the male member is reported to have died in the year 1963 (much before the 2005 Amendment Act came into force). Thus the automatic partition of the ancestral property in question took place in the year 1963 itself. Therefore, the question of applicability of the provisions of the 2005 Amended Act does not arise, especially in view of the Proviso to Section 6(1) of the 2005 Amended Act.
IF YOU HAVE ANY OTHER POINT TO BUTTRESS YOUR VIEW, PLEASE SHARE IT. As always, I am ready to stand corrected.
M V Gupta
(Expert) 15 April 2011
I agree with the opinion of Mr. Ramachandran. The first devolution took place in 1963 when the father died, i.e., before the amendemnt of the Act in 2005. This seems to have been omitted to be taken into account by leaned friend Shri. Venkatesh.
