To determine a person’s share in Hindu ancestral property, three sources of law have to be understood – 1) Old Hindu law 2) The Hindu Succession Act, 1956 and 3) Judicial decisions.
In order to give rights to daughters, the act introduced a legal fiction of ‘notional partition’ whereby when a male Hindu dies after the commencement of the act, (leaving behind female relatives and without executing a will) his share in the coparcenary property is deemed to have been divided at the time of his death, whether actual partition has taken place or not.
a) This means that if a family consists of a father, mother, two sons and a daughter, the share of the father at the time of death, after notional partition would have been 1/4th share in ancestral property. This is because each of the sons take one share (as coparceners), the wife takes one share and the father takes one share as per the rules of old Hindu law (and as per judicial pronouncements which have interpreted and enlarged the scope of the Hindu Succession Act).
b) The share belonging to the father is then again sub - divided equally between all the heirs, i.e., mother, sons and daughter. This 1/4th share goes out of the co-parcenary property for all times. Thus the sons apart from inheriting 1/4th share as coparceners in their own right, also inherit a small share in their individual capacity from the divided share of their father. The share inherited by the mother and daughter also goes out of the coparcenary property. There are conflicting judgments on whether the shares of the sons are to be treated as coparcenary properties or not after partition, by the different high courts and supreme court.
Be it minor or major, girl is having right to share and interest in the property of father except in the property earned by the father which is self acquired property.
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