Share of a married dauthter in ancestral property
H.R. Sampath Kumar
(Querist) 07 July 2009
This query is : Resolved
Is a daughter married in 1985 in karnataka entitled for sale proceeds of her ancestral property?
A V Vishal
(Expert) 07 July 2009
Dear Sampath Kumar
The married daughter is entitled for a share in the proceeds of the ansectral property since the Co-parcenary rights of daughters are confirmed in the year 1994 in Karnataka and the amendment under Hindu Succession act.
However, it is not clear when the property was actually inherited and sold and when did the karta die.
Manish Singh
(Expert) 07 July 2009
i differ with the view expressed by my learned friend. As per the state amendment of karnataka, if the marriage was performed before the commencement of the said amendment then she looses hthe coparcenary rights and in your case since the marriage has taken place in 1985 and the amendment has taken place in 1994 so the you dont possess any right over the same.
H.R. Sampath Kumar
(Querist) 07 July 2009
Dear Sri. Vishal, Thanks for your reply. It is not a HUF, the property was agricultural land -sold in 2008 and the father of the married daughter is still alive. The entire sale proceeds are shared by father, mother and brothers, depriving all the married daughters.
adv. rajeev ( rajoo )
(Expert) 07 July 2009
As per the amendment to hindu succession act, daughter is also coparcener she has got equal right in the ancestral property. She can file a suit for partition.
Jayashree Hariharan
(Expert) 07 July 2009
As per the clarification provided by you regarding the status of the property and also the fact that her father is alive, all the married daughters have right to equal share in the property. they can file a partition suit.
Manish Singh
(Expert) 07 July 2009
Dear Mr. Vardali and Jayshree,
please go through the following and then please chnage ur opinion since it may harm the public at large. please keep in mind that some other south states had also amended the hindu succession act much before the amendment of 2005.
KARNATAKA ACT No. 23 OF 1994.
(First published in the Karnataka Gazette Extraordinary on the Thirtieth day of July, 1994)
THE HINDU SUCCESSION (KARNATAKA AMENDMENT) ACT, 1990.
(Received the assent of the President on the Twenty-eighth day of July, 1994)
An Act to amend the Hindu Succession Act, 1956 in its application to the State of Karnataka
WHEREAS the Constitution of India has proclaimed equality before law as a fundamental right;
And whereas the exclusion of the daughter from participation in co-parcenary ownership merely by reason of her sex is contrary thereto;
And whereas the baneful system of dowry has to be eradicated by positive measure which will simultaneously ameliorate the condition of women in the Hindu society;
BE it enacted by the Karnataka State Legislature in the Forty-first year of the Republic of India as follows ;
1. Short title and commencement.- (1) This Act may be called the Hindu Succession (Karnataka Amendment) Act, 1990.
(2) It shall come into force at once.
2. Insertion of new sections in Central Act XXX of 1956.- In the Hindu Succession Act, 1956 (Central Act XXX of 1956) after section 6, the following sections shall be inserted, namely:-
"6A. Equal rights to daughter in co-parcenary property.- Notwithstanding anything contained in section 6 of this Act,-
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such Joint Hindu Family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:
Provided further that the share allotable to the predeceased child of the predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.
sanjeev murthy desai
(Expert) 07 July 2009
Dear Sampath Kumar,
Copercenary rights and Birth rights differrent from each other. The Co-percenary rights confirmed in 1994 and birth rights confirmed in 2005. In the case Subbayyajoga Naik Vs. Narayanai, AIR 2004 Kar 430, pertaining to the right of a married daughter, the Hon'ble COurt held that daughter being Class I heir is entitled for share in the Property of Father and marriage before 20 years is immaterial. In my view as per this decision married also has the rights of her ancestral property.
sanjeev desai
H.R. Sampath Kumar
(Querist) 07 July 2009
Dear Mr. Manish, since the daughter was married in 1985, do you mean to say that she will not be entitled to the ancestral property sale proceeds? thanks and regards- sampath
Manish Singh
(Expert) 07 July 2009
dear Mr. Kumar, as per my observation the daughters in your case shall not be entitled to the shares of properies since it was an ancestral one.
Dear Mr. Desai, I am extremely thankful to you for providing such a wonderful case on the issue which enlightens another pat of succession under the Hindu succession Act which i was not aware of. But sir, the said case speaks about and confirms the sahre of a daughter under HSA even if she is married with a condition that the property was a self acquired property of the father/mother and it was held that in those circumstances if father/mother dies intestate, class I heirs shall succeed to the property accordingly. but in present case the propery is an ancestarl one so the said case shall not apply.
sanjeev murthy desai
(Expert) 07 July 2009
Ancestral proeprty means a person who inherited property rights from father, grand father and great grand father that property called as ancestral. So that property daughter is inherited from her father.
If one who purchse the property during his life time that property called as self acquired, thereafter next generation that proeperty called as ancestral. So above said clreay held that married daughter also has the equal rights of their father properties.
Manish Singh
(Expert) 07 July 2009
the querist purports that it was an ancestral agricultural land so how could it be self acquired.
even if a person sells off an ancestral property in 2008 would not make it self acquired.
sanjeev murthy desai
(Expert) 08 July 2009
Dear Mr. Sampath kumar,
Completely gothorough this case
Subbayyajoga Naik vs Narayanai And Ors. on 16 June, 2004
Cites 1 docs
The Hindu Succession Act, 1956
Karnataka High Court
Subbayyajoga Naik vs Narayanai And Ors. on 16/6/2004
JUDGMENT
V. Gopala Gowda, J.
1. This second appeal is filed by the 6th Defendant in O. S. No. 45/98 on the
file of civil Judge (Jr. Dn), Bhatkal, being aggrieved by the Judgment and
Decree dated 15-9-2003 in R. A. No. 428/2001 reversing the Judgment and Decree
dated 25-9-2001 passed by the trial Court in dismissing the suit.
2. The first respondent herein was the plaintiff in the suit. The appellant
was the 6th defendant and other respondents herein were the defendants. For the
sake of convenience, the rank of the parties is referred to as in the original
suit.
3. The Plaintiff filed the suit for declaration that the entries in the R. T.
C. in respect of "A" Schedule properties showing the names of the plaintiff and
defendants on the basis of alleged partition, are wrong, illegal and they are
liable to be deleted and that the names of plaintiff and defendants 2 to 6 have
to be substituted as legal representatives of deceased Joga Hanuma Naik, who
died intestate. A further relief for partition by metes and bounds of the said
properties into six equal shares and to deliver one such share with five mudi
rice per year from the date of suit till delivery of possession was bought for
in the original suit. The defendants filed written statement denying the plaint
averments. It is claimed that Joga Hanuma Naik executed a Will on 6-5-1985
bequeathing the properties in favour of the 6th defendant. On the basis of the
pleadings, the trial Court framed issues and went for trial. Parties adduced
evidence and produced documents in support of their respective case. Upon
consideration of the material brought on record, the trial Court dismissed the
suit holding that plaintiff is not entitled for 1/6th share. In the appeal
preferred, the said judgment and decree of the trial Court are reversed by the
first Appellate Court and decreed the suit. Aggrieved by the same, the 6th
defendant has filed the present second appeal.
4. It is not in dispute that the properties in question are the ancestral
properties belong to deceased Jogi Hanuma Naik. He died intestate. The first
defendant was his wife while plaintiff and defendants 2 to 6 are his children
and defendants 7 to 10 are grand children. The relationship between the parties
is admitted.
5. The trial Court denied the relief sought for by the plaintiff in the suit
merely because the plaintiff and defendants 2 to 5, the daughters of deceased
Jogi Hanuma Naik, had been married 20 years back. Placing reliance upon Hindu
Law of Mulla, it is held that a daughter ceases to be a member of her father's
family on marriage and becomes a member of her husband's family and hence, the
daughters are not entitled to share. To arrive at this conclusion, the trial
Court relied upon the decision reported in I. L. R. 2001 Kant 2209.
6. The first Appellate Court re-appreciated the findings and reasons assigned
by the trial Court and disagreed with the same. It has held that eventhough
plaintiff got married earlier to 1994, the properties being the self acquisition
of her father, she is entitled to a share. Since Joga Hanuma Naik and his wife
died intestate, their children being Class-I heirs under the Hindu Succession
Act, they are entitled to 1/6th share each in the properties. Hence, the first
Appellate Court has rightly held that the trial Court has not distinguished the
decision relied upon by it and that the other decisions cited are not applicable
to the case on hand.
7. So far as the Will alleged to have been executed by Joga Hanuma Naik in
favour of 6th defendant is concerned, though the trial Court framed issue No. 2
casting burden on the 6th defendant to prove the
Uma parameswaran
(Expert) 08 July 2009
My opinion is that the case marked here by Desai sir is different from Sampath kumar's query. In his query the property is an ancestral and father is alive. As told by Manish sir, here married daughter is not entitled to get her share because her marriage is prior to amendment .The amendment told that d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.
Manish Singh
(Expert) 09 July 2009
Dear Ms Uma,
I completely agree with your view and in fact the said amendment of 1994 alongwith the case cited by Mr. desai also approves the same.
under this query, the married daughter shall not get any share in the ancestral property and it would just be a waste of time and money of the querist along with waste of time of judiciary if the querist approaches the cout for the shares.
