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ak05 (nil)     20 March 2010

Hindu succession act....

A  has been living with his maternal Grandfather since his parents expired in 1993.

The court had appointed A’s maternal Grandfather as his legal guardian.

As of today, A is 24 years of age.

A’s maternal grandfather expired in 2009 leaving behind following heirs:

1) His Wife(A’s maternal Grandmother).

2) His son (A’s maternal uncle).He is married(in 1980s).

3) His first daughter(A’s maternal aunty).She is married(in 1980s).

4) His second daughter(A’s Mother). She expired in 1993.      

 

A’s maternal Grandfather has left behind following property

1) Movable assets : Savings and FD accounts.

2) Immovable assets : flats.

 

A’s maternal grandfather has not left any will(Intestate). So being the son of a pre-deceased daughter(A’s mother in this case), is A eligible for a share in the above said property of his maternal grand father as per the Hindu Succession Act. If yes, what role will he play I mean what would be his rights in this case.

 

Please clarify. Thanks.



Learning

 10 Replies

AEJAZ AHMED (Legal Consultant/Lawyer)     20 March 2010

Section – 6 : Devolution of interest of coparcenary  property

 

 

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:

 

Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative spe- cified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

 

Explanation 1.- For the purposes of this section, 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.

 

Explanation 2.- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.

 

THE SCHEDULE

[Section 8]

HEIRS IN CLASS I AND CLASS II

 CLASS I

          Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.

CLASS II

I.       Father

II       (1) Son's daughter's son, (2) son's daughter's daughter,(3)  brother, (4) sister.

III      (1) Daughter's son's son (2) daughter's son's daughter, (3) daughter's daughter's son (4) daughter's daughter's daughter.

IV.     (1) Brother's son (2) sister's son, (3) brother's daughter, (4) sister's daughter.

V.       Father's father; father's mother.

VI.     Father's widow; brother's widow.

VII.    Father's brother; fathers' sister.

VIII.   Mother's father; mother's mother.

 IX.     Mother's brother, mother's sister.

The property of a Hindu male dying intestate, or without a will, would be given first to heirs within Class I. If there are no heirs categorized as Class I, the property will be given to heirs within Class II. If there are no heirs in Class II, the property will give to the deceased’s agnates or relatives through male lineage. If there are no agnates or relatives through the male’s lineage, then the property is given to the cognates, or any relative through the lineage of males or females.

So you being included in Class I as "son of a pre-deceased daughter" eligible for a share in the property left by your  "Maternal Grandfather".

 

1 Like

adv. rajeev ( rajoo ) (practicing advocate)     20 March 2010

I  go with Ahmad

ak05 (nil)     21 March 2010

Thanks for the quick reply Sir..but I have a small doubt.

As per the "THE HINDU SUCCESSION (AMENDMENT) ACT, 2005", the daughter will have equal right in the property of her father like the son.

Q 1) But is this applicable to all the daughters who were married much before 2005. i.e in this case A's mother died in 1993(before the commencement of this act). So, even in this case is A's mother a probable coparcener in the property of A's grandfather who died in 2009?

Q 2) If yes, then as mentioned in CLASS 1 heirs, A will be eligible for the share in the property. Will this share be the same as it would have been given to A's mother had she been alive?

And how will the shares of movable and immovable assets as mentioned in my first post be divided amongst,

1. A's maternal uncle;

2. A's maternal Aunty and

3. A.

Q 3) Will the whole property(movable and immovable assets included) be divided equally amongst the 3 mentioned above or will this differ?

Please clarify. Thanks :)



sahadev k (financial planner)     27 March 2010

Date of marriage is irrelevant after the amendment came into force. Date on which the partition arose should be after the amendment was enacted. Since the partition arose in 2009, the amended act is applicable

girishankar (manager)     27 March 2010

Dera sir,

To my Kowledge the  marriage is relavant one as per law in this case if you gothru Bare Act of 2005 it will be cleared.. Pl check,,,,

sahadev k (financial planner)     27 March 2010

Andhra Pradesh High Court in Damarlanka Gangaraju and Others:

 

Therefore, after 9.9.2005, all the daughters have to be treated as
 coparceners entitled to equal shares, irrespective of the fact whether
 they are majors or minors or their marriages were performed before
 5.9.1985 or subsequent  to 5.9.1985
p.s. : The Act was amended in AP in 1985

Also go through the following article by eminent jurist

Daughter’s right in 
coparcenary

 

Subject :  
Month-Year : Jan 2009
Author/s : M. L. Bhakta Advocate & Solicitor
Topic : Daughter’s right in coparcenary

 

Article Details :

Since the passing of the Hindu Succession Act, 1956 (‘the Act’), one issue which was constantly agitated by the liberals was regarding the right of a daughter or a married daughter in coparcenary property of a Hindu Undivided Family. Some of the States which took the lead in liberalisation, passed State amendments to the Act, whereby an unmarried daughter married after the specified date was given a right in coparcenary property. Kerala, Karnataka and Maharashtra were some such States.

However, the agitation of the liberals still continued. As a result, the Act was amended by the Hindu Succession (Amendment) Act, 2005 (‘the Amending Act’) which came into force from 9th September 2005. The Amending Act substituted S. 6 of the Act. The provision of S. 6 of the Act, so far as it relates to this article, is quoted below :

"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 :

Provided 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.

(2) to (4) x x x

(5) Nothing contained in this Section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. — x x x"

Mayne’s ‘Hindu Law and Usage’ describes the scope of the Amending Act as under :

‘The Hindu Succession (Amendment) Act, 2005 has substituted S. 6, w.e.f. 9-9-2005. With effect from this date, the devolution of interest in the coparcenary property shall be governed by this Section. In a Mitakshara joint Hindu family, 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.’

(See 16th Edition, 2008 at page 1175).

Even after passing of the Amending Act and substitution of S. 6, a number of questions were raised in the legal circles as to whether the Amending Act was prospective or retrospective and whether a daughter born before coming into force of the Amending Act i.e., 9th September 2005 was entitled to benefit under the newly incorporated S. 6 of the Act. There were divergent views and conflicting arguments.

Fortunately, these issues have now come up before our Courts and we now have the benefit of some judicial pronouncements on the effect of the new S. 6 of the Act.

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.

The same issue also arose before the High Court of Karnataka in Sugalabai v. Gundappa A. Maradi and Others [ILR 2007 KAR 4790; 2008 (2) Kar LJ 406]. The Court was considering appeals where pending the appeals the Amending Act was passed by the Parliament. The Court held that as soon as the Amending Act was brought into force, the daughter of a coparcener becomes, by birth, a coparcener in her own right in the same manner as the son. Since the change in the law had already come into effect during the pendency of the appeals, it is the changed law that will have to be made applicable to the case. The daughter, therefore, by birth becomes a coparcener and that there is nothing in the Amending Act to indicate that the same will be applicable in respect of a daughter born on and after the commencement of the Amending Act.

In coming to the conclusion, the Court referred to the following principles of interpretation of statutes as laid down by the Apex Court :

(1) Statutory provisions which create or take away substantive rights are ordinarily prospective. They can be retrospective if made so expressly or by necessary implication and the retrospective operation must be limited only to the extent to which it has been so made either expressly or by necessary implication.

(2) The intention of the Legislature has to be gathered from the words used by it, giving them their plain, normal, grammatical meaning.

(3) If any provision of a legislation, the purpose of which is to benefit a particular class of persons is ambiguous so that it is capable of two meanings, the meaning which preserves the benefits should be adopted.

(4) If the strict grammatical interpretation gives rise to an absurdity or inconsistency, such interpretation should be discarded and an interpretation which will give effect to the purpose will be put on the words, if necessary, even by modification of the language used.

The Court also applied the principles stated in American Jurisprudence (2nd Edition, Vol. 73, Page 434, Part 366) quoted with approval by the Supreme Court in S. R. Bommai v. Union of India, (AIR 1994 SC 1980).

"While it has been held that it is the duty of the Courts to interpret a statute as they find it without reference to whether its provisions are expedient or inexpedient, it has also been recognised that where a statute is ambiguous and subject to more than one interpretation, the expediency of one construction or the other is properly considered. Indeed, where the arguments are nicely balanced, expediency may trip the scales in favour of a particular construction. It is not the function of a Court in the interpretation of statutes, to vindicate the wisdom of the law. The mere fact that the statute leads to unwise results is not sufficient to justify the Court in rejecting the plain meaning of unambiguous words or in giving to a statute a meaning of which its language is not susceptible, or in restricting the scope of a statute. By the same token an omission or failure to prove for contingencies, which it may seem wise to have provided for specifically, does not justify any judicial addition to the language of the statute. To the contrary, it is the duty of the Courts to interpret a statute as they find it without reference to whether its provisions are wise or unwise, necessary or unnecessary, appropriate or inappropriate, or well or ill conceived."

One additional issue was raised before the Court in this case as to whether there was a conflict between the Amending Act and the provisions of the Hindu Succession (Karnataka Amendment) Act, 1994. The Court held that "When there is a conflict between the State law and the subsequent law made by the Parliament on an Entry in Concurrent List, it is the law made by the Parliament that will prevail over the State Law even though the State law was passed after obtaining assent of the President and it is not necessary that law made by the Parliament should expressly repeal a State law."

It is submitted that, in view of the aforesaid decisions of the Orissa and the Karnataka High Courts, the issue is presently settled and that the daughter of a coparcener becomes, by birth, a coparcener in her own right in the same manner as the son, irrespective of whether she was born before or after the Amending Act came into force.

girishankar (manager)     27 March 2010

HINDU SUCCESSION (AMENDMENT) ACT 2005

THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 NO. 39 OF 2005

[5th September, 2005.]

An Act further to amend the Hindu Succession Act, 1956. BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:-

1. Short title and commencement.-(1) This Act may be called the Hindu Succession (Amendment) Act, 2005.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Amendment of section 4.-In section 4 of the Hindu Succession Act, 1956 (30 of 1956) (hereinafter referred to as the principal Act), sub-section (2) shall be omitted.

3. Substitution of new section for section 6.-For section 6 of the principal Act, the following section shall be substituted, namely:-

'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: Provided 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.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary 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 testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.- For the purposes of this sub-section, 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.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.'.

4. Omission of section 23.-Section 23 of the principal Act shall be omitted.

5. Omission of section 24.-Section 24 of the principal Act shall be omitted.

6. Amendment of section 30.-In section 30 of the principal Act, for the words "disposed of by him", the words "disposed of by him or by her" shall be substituted.

7. Amendment of Schedule.-In the Schedule to the principal Act, under the sub-heading "Class 1", after the words "widow of a pre-deceased son of a pre-deceased son", the words "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 pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son" shall be added. ---- T. K. VISWANATHAN, Secy. to the Govt. of India. {}


Dhiraj Alagdeve (Advocate)     28 April 2010

There are various theories by different lawyers with respect to the amended act of hindu succession act.Any how the latest citations be taken into consideration for the real dilemna.

Thx

girishankar (manager)     29 April 2010

It Depends of the Lawyer who attends and Judge who is sitting ......As per law there is one thing and as per Citiation it will be another b'cous Suo Motto  Judgement will be given  only  for this type  of case.......

Subrahmanyam (Scientific Officer (Retd))     02 February 2011

  

                   We are 4 sons(S1,S2,S3,&S4) and 6 daughters( D1,D2,D3,D4,D5,D6)  Our father(F)

died intestate in 1980 and mother (M) died in 2005(also intestate  D1 was married in 1961. D2

was married in 1968. D3 in 1972, D4 in 1981 &     D6 in 1990. D5 is unmarried as on to day.

           

                       

                     Since it was a big family and even though the sons S1 to S4 were shouldering  all the

 financial and family burden like education and marriages of the daughters in addition to providing

all daily necessities for the family, they were taking  financial, physical and moral support of D1 and D3

 ad their husbands. As a token of gratitude for the assistance rendered,( EVEN THOUGH THEY WERE

NOT LEGALY ENTITLED TO ANY SHARE IN THE PROPERTY-AS PER THE Hindu

Succession Act of 1956-BEING MARRIED DAUGHTERS) a collective decision was taken to allot  

an equal share-(1/72+1/6=13/72) as that of the sons) to all those who  helped the family.D1 was allotted

13/72 share of the property. D3 was financially very sound and didn’t want to be repaid for her moral

responsibility   she declined to take 13/72 share and so was given only 1/72 share. Since D2 & D4 (who

 were married before 1986) were not in any   way supporting the family  they were  given

1/73 share(even though not legally  entitled to  any  share since they were married    prior to 1986.)

Since  D5& D6 were unmarried they were also given equal shares as  that of the  sons(13/72)

 

         In the Year 1993 a new partition agreement was signed in which all the parties M,

         S1,S2,S3,S4,D1,D2,D4,D5,D6 except D3(who relinquished . Signed the partition agreement  on a Stamp paper.

         In this partition deed S1-S4(sons)M

        D1, D5 &D6 were allotted equal shares, and D2 & D4 were allotted 1/72 share only

          Here again even though the partition agreement  was signed by all the parties except D3

          It was not registered.(i.e.  it is an un registered partition )-and

       D3 has signed as a witness.

          

           The queries are:

 

1.     Can women married before 1986 claim any share in the ancestral 

Property if a partition deed (Family arrangement) was prepared (in which

all the parties put in their signatures, but which  is not registered-but It being

a valid document in view of the Law Commission  Report  No 208 0f 2008

 

                                           OR

 

 Do married women (married before 1986) claim coparcenary rights in a

 Property even in the presence of a partition agreementsigned  between the

 Parties (in 1993) i.e., before the commencement of the Hindu Succession Act

 (Amendment) Of 2005?     

                                   

             


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