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Krishna (SW professional)     03 October 2011

Does a farmer's daughter also get farmer status?

 

Hello,

 

My Dad has farming land in UP.

My brother I understand can get farmer status too as our dad is a farmer.

 

But does an unmarried daughter become eligible too?

 

Thanks.



Learning

 8 Replies

adv. rajeev ( rajoo ) (practicing advocate)     04 October 2011

Yes she is also from agrl., family.

SANJAY SHARMA (ADVOCATE IN CHARGE)     04 October 2011

yes dear krishna

according to HINDU SUCCESSION ACT 2005 (AMENDED)  a girl can get her share in agriculture land she may be married and she may be unmarried, both type of situation is applied on HSA 2005 (AMENDED).

Shailesh Kr. Shah (Advocate)     06 October 2011

Shri SANJAY SHARMA

HINDU SUCCESSION ACT is not applied on Agricultural Land of UP.

SANJAY SHARMA (ADVOCATE IN CHARGE)     06 October 2011

dear shah

hindu succession act up me bhi apply hota hai wo uttar bharat ke har state me apply hota hai

agar nahi hai to kirpa karke koi parman dikhao

ya koi judgements dikhao

 

regards

 

sanjay sharma

advocate

SANJAY SHARMA (ADVOCATE IN CHARGE)     06 October 2011

sir

rajoo advocate is HINDU SUCCESSION ACT UP NOT RULED OUT IN UTTAR PRADESH

MR. SHAH KAH RAHE HAI IS HE RIGHT

KINDLY PROVIDE REPLY

Shailesh Kr. Shah (Advocate)     07 October 2011

Dear Sanjay MIshra

HSA not apply on heirs of 'agricultural land' at up.


(Guest)

Learned advocates must be right but I do have a question what if a farmer's daughter becomes a professional doctor in USA for eg. and marries a professional doctor and marries in accordance with Hindu Rites? Maybe I've not understood the question in its proper perspective.

Tajobsindia (Senior Partner )     01 November 2011

@ Author


In my views the Amendment of 2005 brought all agricultural land at par with other property and made Hindu women's inheritance rights in land legally equal to men's across the states, overriding any inconsistent State laws. Thus she enjoys status of FARMER.

ld. brothers, the author has asked us a question which can be rounded off by understanding first the implications of the Amendment Act, 2005 of HAS.

 


After the Amendment introduction of daughters as coparceners was given way as larger public interest policy step and thus Amendment to S. 6 of the Hindu Succession Act is a step forward.

 

 

Since the daughter has been made a coparcener by way of the Amendment she has been put at par with the son and gets a birth right in the ancestral property owned by the coparcenary. For illustration, the daughter would have a birth right in the property separately owned by her paternal grand-father, and if he dies intestate leaving behind his son (the father of the daughter) then the daughter shall have an interest in the said property as a coparcener and she would be entitled for partition along with the right to demand partition from her father.

 

 

According to this Amendment if the daughter dies intestate; her interest in coparcenary would devolve by succession in accordance with S. 15 of the HSA and if the daughter is left alone by deceased male coparcener, she shall inherit his entire property of which she would become absolute owner and after her death, if she dies intestate shall devolve upon her heirs as per S.15. Further, the daughter now has the right to dispose of her interest in coparcenary by making a will and if she is a lone heir she shall become absolute owner of the property and shall also have a right to alienate it during her life time.

 

 

This Amendment also created a right to have a share in the joint property during the partition favour of children of the daughter and her pre-deceased daughter, in case of their death, that is to say a son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a predeceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son, are also now included in Schedule to HSA as Class I heirs. The said heirs, not being coparceners, would not have right to demand partition but they would be entitled to their share as provided in amended S.6 of the HSA.

 

 

Reference to Case- Laws as of date:-

Since the Amendment Act, there it was expected that women approaching the Courts to ascertain their right in the coparcenary property. However very few of such cases have been decided and reported.

 


Here are some important Supreme Court takes post Amendment updated as of date (ld. brothers may add most recent case law if any I am missing out here):

 



The Supreme Court in the case of Sheela Devi and Ors. v. Lal Chand and Anr. MANU/SC/4318/2006 dealt with the question of right of a coparcener of a Mitakshara family under the old Hindu Law vis- a`- vis Hindu Succession Act, 1956. The contention raised therein that the provisions of the Amendment Act, 2005 will have no application as the succession had opened in 1989 was negatived, holding:

 

 

“The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Ss. (1) of S. 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to Ss. (1) of S. 6 of  the Act creates an exception. First son of Babu Lal, viz., Lal Chand, was, thus, a  coparcener. S. 6 is exception to the general rules. It was, therefore, obligatory on the part of the Plaintiffs-Respondents to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the Second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956. Thus, it was the half share in the property of Babu Ram, which would devolve upon all his heirs and legal representatives as at least one of his sons was born prior to coming into force of the Act”.

 

 

In Anar Devi and Ors. Vs. Parmeshwari Devi and Ors. AIR 2006 SC 3332 the Supreme Court held that

 

 

“Thus we hold that according to S. 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to S. 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and, i.e. ,that 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. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition. In the case on hand, notional partition of the suit properties between Nagarmal and his adopted son Nemi Chand has to be assumed immediately before the death of Nagarmal and that being so Nagar Mal's undivided interest in the suit property, which was half, devolved on his death upon his three children, i.e., the adopted son Nemi Chand and the two daughters who are plaintiffs in equal proportion. Nemi Chand, the adopted son, would get half of the entire property which right he acquired on the date of adoption and one third of the remaining half which devolved upon him by succession as stated above. This being the position, each of the two plaintiffs was not entitled to one-third share in the suit property, but one-sixth and the remaining properties would go to the adopted son, Nemi Chand. The suit properties in the hands of Nagar Mal were ancestral one in which his son Nemi Chand got interest equal to Nagar Mal after his adoption and from the date of adoption, a coparcenary was constituted between the father and the adopted son. Upon the death of Nagar Mal, the property being ancestral, the half undivided interest of Nagar Mal therein devolved by rule of succession upon his three heirs, including Nemi Chand. This being the position each of the daughters would be entitled to one-sixth share in the suit properties and the remaining would go to the heirs of Nemi Chand, since deceased.”

 

 

The Supreme Court in R. Mahalakshmi Vs. A.V. Anantharaman and Ors. (2009) 9 SCC 52 held that:

 


“Perusal of the aforesaid provision of law makes it abundantly clear that the daughters who have got married prior to 1989 may not have equal share as that of a son but the daughters who got married after 1989 would have equal share as that of a son. In other words, daughters who got married after 1989 would be treated at par with son having the same share in the property.”

 

 

In G. Sekar Vs. Geetha and Ors. AIR 2009 SC 2649, the Supreme Court held that

 

 

“It is, therefore, evident that the Parliament intended to achieve the goal of removal of discrimination not only as contained in S. 6 of the Act but also conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of S. 23 of the Act.

 

It is now a well settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding would depend upon the nature as also text and context of the statute. Whether a litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered.

 

We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not effect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statue and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending act which affects the procedure is presumed to be retrospective, unless amending act provides otherwise”.

 

 

In M. Yogendra and Ors. Vs. Leelamma N. and Ors.2010 (1) ALL MR (SC) 490, the Supreme Court held that

 

 

“The Act indisputably would prevail over the Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application..... 

 

It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement o the Act. It is manifest that the language of S. 8 must be construed in the context of S. 6 of the Act. We accordingly hold that the provisions of S. 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e. where succession opened before the Act. S. 8 of the Act will have no application.”

 

 


Here are various HC's takes post Amendment as of date

 

 

Madras High Court:

 

In Angammal and Chinnammal Vs. C. Sellamuthu and Senthilkumar MANU / TN / 9458 / 2007, the Madras High Court while rejecting an amendment application to enlarge the shares of the daughters held that

 

 

“Admittedly, the plaintiffs have got married in the years 1965 and 1970 respectively. In these circumstances, as per law which is relied upon by the plaintiffs, the plaintiffs are not entitled to larger share since the Amendment Act is prospective in nature and there is no question of enlargement of devolution of share to the plaintiffs. When that is so, the amendment has to be necessarily rejected.”

 

The High Court of Madras, in the same case, went on to say that:

 

“In any event, inasmuch as under the amended provision, especially the provisos to S. 6 (1) and 6 (5) of the Act, any partition effected before 20th December, 2004 has been saved and on the facts of the case as it is narrated in the written statement that in the partition suit there has been a final decree passed on 11.8.1999 itself and on the basis of memo of compromise filed in which Chennimalai Gounder, who was a coparcener, ultimately died on 23.6.2004.

 

Even as per the explanation, notional partition has taken effect from the date of his death, viz., 23.6.2004 before which time the partition has already been effected by way of final decree and therefore, as rightly pointed out by the learned trial Judge, there is no substance in the contention of the petitioners that by advent of law, viz., by way of amendment, the division of shares gets enlarged. In view of the same, there is no illegality or irregularity in the order of the learned trial Judge and the revision fails and the same is dismissed.”

 

 

In the case of Smt. Bhagirathi and Others v. S. Manivanan and Anr. AIR 2008 Madras 250,  the Madras High Court has held as under :

 

 

“A careful reading of S. 6(1) read with 6(3) of the Hindu Succession (Amendment) Act clearly indicates that a daughter can be considered as a coparcener only if her father was a coparcener at the time of coming into force of the amended provision. It is of course true that for the purpose of considering whether the father is a coparcener or not, the restricted meaning of the expression ‘partition’ as given in the explanation is to be attributed.

 

In the present case, admittedly the father of the present petitioners had expired in 1975. S. 6(1) of the Act is prospective in the sense that a daughter is being treated as coparcener on and from the commencement of the Hindu Succession (Amendment) Act, 2005. If such provision is read along with S. 6(3), it becomes clear that if a Hindu dies after commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property shall devolve not by survivorship but by intestate succession as contemplated in the Act.”

 

 

Further in the case of Valliammal v. Muniyappan 2008 (4) CTC 773,the Madras High Court has observed as under :

 

 

“In the plaint, it is stated that the father of the plaintiffs died about thirty years prior to the filing of the suit. The second plaintiff as P.W.1 has deposed that their father died in the year 1968. The Amendment Act 39 of 2005 amending S. 6 of the Hindu Succession Act, 1956 came into force on 9-9-2005 and it conferred right upon female heirs in relation to the joint family property. The contention put forth by the learned Counsel for the appellant is that the said Amendment came into force pending disposal of the suit and hence the plaintiffs are entitled to the benefits conferred by the Amending Act. The Amending Act declared that the daughter of the coparcener shall have the same rights in the coparcenary property as she would have had if she had been a son. In other words, the daughter of a coparcener in her own right has become a coparcener in the same manner as the son insofar as the rights in the coparcenary property are concerned. The question is as to when the succession opened insofar as the present suit properties are concerned. As already seen, the father of the Plaintiffs died in the year 1968 and on the date of his death, the succession had opened to the properties in question. In fact, the Supreme Court in a recent decision in Sheela Devi and Ors. v. Lal Chand and Anr., 2007 (1) MLJ 797 (SC) considered the above question and has laid down the law as follows :

 

The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer the right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. In view of the above statement of law by the Apex Court, the contention of the appellant is devoid of merit. The succession having opened in the year 1968, the Amendment Act 39 of 2005 would have no application to the facts of the present case.”

 

 

Orissa High Court

 

In Pravat Chandra Pattnaik and Others vs. Sarat Chandra Pattnaik and Another AIR 2008 Orissa 133, the Orissa High Court had occasion to consider the effect of the Amending Act and the new S. 6 of the Act. It was a case relating to partition of Hindu Mitakshara coparcenary property. After decision by the lower Court, an appeal was preferred to the High Court.

 

 

The Court held that the Amending Act was enacted to remove the discrimination contained in S. 6 of the Act by giving equal rights and liabilities to the daughters in the Hindu Mitakshara Coparcenary property as the sons have. The Amending Act came into force with effect from 9-9-2005 and the statutory provisions create new right. The provisions are not expressly made retrospective by the Legislature. Thus, the Act itself is very clear and there is no ambiguity in its provisions. The law is well settled that where the statute’s meaning is clear and explicit, words cannot be interpolated. The words used in provisions are not bearing more than one meaning. The amended Act shall be read with the intention of the Legislature to come to a reasonable conclusion. Thus, looking into the substance of the provisions and on conjoint reading, Ss.(1) and (5) of S. 6 of the Act are clear and one can come to a conclusion that the Act is prospective. It creates substantive right in favour of the daughter. The daughter got a right of coparcener from the date when the amended Act came into force i.e., 9-9-2005. The Court also did not accept the contention that only the daughters, who are born after 2005, will be treated as coparceners. The Court held that if the provision of the Act is read with the intention of the legislation, the irresistible conclusion is that S. 6 (as amended) rather gives a right to the daughter as coparcener, from the year 2005, whenever they may have been born. The daughters are entitled to a share equal with the son as a coparcener.

 

 

Karnataka High Court

 

In Sugalabai Vs. Gundappa A. Maradi and Ors.2008 (2) Kar LJ 406, the Karnataka High Court observed that:

 

 

“Since the change in the law has already come into effect during the pendency of these appeals, it is the changed law that will have to be made applicable to the case on hand. A daughter, therefore, by birth, becomes a coparcener and there is nothing in the Central Amendment Act, 2005 to indicate that the said Amendment Act will be applicable in respect of daughter born on and after the commencement of the Amending Act of 2005.”

 

 

Delhi High Court

 

In Shri Brij Narain Aggarwal vs. Sh. Anup Kumar Goyal and Ors.AIR 2007 Delhi 254, the Delhi High Court held that

 

 

“the very opening words of Section 6(1) are 'On and from...in a Joint Hindu Family'. Thus, Sub-section 1 envisages existence of a Joint Hindu Family, when the amendment came into force and right of the daughter in the HUF coparcenary is to be determined if HUF is in existence. Thus, the very first condition of the application of this amended provision is that on the day when amended Act came into force, an HUF, governed by Mitakshara law must be in existence. If Joint Hindu Family is in existence on that day, the daughter shall be a coparcener in the Joint Hindu Family like any other son and shall have same right in the coparcenary as that of a son and shall be subject to the same liabilities in respect of the said coparcenary property as a son would be. If no HUF is in existence on that day, when amendment came into force, the question of daughter being coparcener does not arise.”

 

 


Coming to possible debate on Agriculture land share to daughter following is judicial wisdom based generic take;

 


Deletion of provisions exempting agricultural holdings?

 

i.e. Deletion of S. 4 (2) of the Act which probably the author of this post is in-directly taking us to clarify on !!!!

 

 

There seems to be two different opinions regarding this deletion by the amendment of 2005. One point of view is that, by deleting this section confusion has been created since the legislature has failed to provide any express provision that states or confirms the application of HSA to agricultural property over and above any state law that also deals with the same. These laws, which provide for prevention of fragmentation of agricultural holdings, fixation of ceilings and devolution of tenancy rights, apply to the inhabitants of the state uniformly, irrespective of their religion. For example, the whole of the agricultural land (unless otherwise provided) would be subject to a uniform law, and the religion of the land owner or the tenant, as the case maybe, will be of no consequence. The deletion of S. 4 (2) along with an implied presumption that after amendment the HSA would apply to all kinds of property including rights in agricultural land would now mean that diversity would exist state wise with respect to laws governing agricultural property. Moreover, a conflict may also arise over central or state legislations that are diverse in content. Inheritance and succession is specified in list III, entry (v) while land is a state subject. Whether the Center is competent to legislate on agricultural land is itself a matter of dispute. Normally, if there is a subject on which both Center as well as state can legislate, in case of conflict, the central legislation prevails. But as provided under Art 256 of the Constitution, the Center should be competent to legislate on it. This confusion is bound to crop up paving way for immense litigation in this area.

 

 


However, the other point of view explains that deletion of S. 4 (2) from the HSA is
definitely a right step towards removal of gender inequalities in the inheritance of agricultural land. Previously, S. 4 (2) had exempted from the overview of HAS significant interests in agricultural land, the inheritance of which was subject to the devolution rules specified in State level tenurial laws. In States where these laws were silent on inheritance HSA would apply. But, in Delhi, Himachal Pradesh, Punjab, J&K and UP the tenurial laws specify inheritance rules that were highly gender unequal. Here, primary preference was given to male lineal descendants in the male line of descent and the women came very low in the order of preference of heirs. But the Amendment of 2005 brought all agricultural land at par with other property and made Hindu women's inheritance rights in land legally equal to men's across the states, overriding any inconsistent State laws.

 

 


Now ending this take as conjoint reading let us read features of Art. 256 COI also:

 

 

256. Obligation of States and the Union The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. 


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