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BALASUBRAMANIYAN (RETIRED ENGINEER)     08 March 2008

HINDU SUCCESSION ACT 2005

FRIENDS,
I will be grateful if any legal experts answer my question regrding hindu succession act 2005.
My wife is youngest in her family with three elder brothers,one elder sister and mother all alive.Her family is a close knit very affectionate family and so far no misundresatding on any matters.
we married in 1961 and her father died in 1970 and left no will.He had an  ancestral house in Tamilnad,recently sold  by one of her brothers, duly authorised by  POA be every member of the family.
The hindu succession act 2005 provides equal share from the sale deed including daughters.
If so my wife can claim one siixth share ( 3 brothres,two daughters incl. of my wife and her mother=total six) with out hurting any family members by citing this act??
Please help by mail immediately
vimalabaloo


Learning

 35 Replies

P.V.Poornima (Lawyer)     09 March 2008

The amendment is as follows:

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. 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.

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

3. Substitution of new section for section 6.

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.'.

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

Omission of section 24.

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

6. Amendment of section 30.
!
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.

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 predeceased 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.

Hence in case no partition has taken place in the family before 20.12.2004, you can ask for partition
2 Like

SANJAY DIXIT (Advocate)     05 April 2008

Good information. Thanks.

Rasik Dagli (Lawyer)     23 April 2008

In view of amended Hindu Succession Act your wife can claim one-sixth share in the property. As you say property is already sold, she can cliam her share in the sale consideration received.This may hurt her brotherif he is not willing to give her share.

gagandeepsingh.bagga (Practising Lawyer )     28 April 2008

your wife can definately claim for its share from the ancestrol propety of her father ..................if you want then dont waste time

Guest (n/a)     03 May 2008

your wife can definately claim for its share from the ancestrol propety of her father, but there must be a time limitation after which your wife's claim shall be barred by limitation. So if you are interested in getting that share, then please immediately consult your lawyer and serve a legal notice to her brothers.

Guest (n/a)     30 May 2008

Mr X, a Hindu mail expires in March 1996, leaving behind a self acquired property in Delhi in his sole name.His last will dated july 1994 witnessed by two close relatives, but unregistered, states that the property after his demise goes to his wife and thereafter will be shared equally between his daughter and a son.Question 1. Can the wife sell this property in her life time and distrbute the sale proceeds 50:50 amongst her daughter and son? Q.2 what can the sister dio if the son in occupaion of the property declines to mutate the property in the name of the mother and thereby indirectly deprive the sister her share in the property?Q3. what action should daughter take to protect her 50% share in the property during the life time of her mother?

arunprakaash.m. (advocate)     04 June 2008

your wife can get 1/6 share of her fathers proerty if it is not a dwelling house resided by members of her family. even in dwelling house also she can get her share. only thing that she cannot file petition for partition of a dwelling houe. in your case the property is alrady sold. so definitely she can get her share under section 8 of the hindu sucession act 1956. refer schdule I and II of the referred act.PLEASE ALSO REFER section 6 new amendment of 2005 under the hindu sucession act.

arunprakaash.m. (advocate)     04 June 2008

according to the indian sucession act 1925 will need not be registered.we have to analise the intention of the testator. if the intention of the testator is only life estate for the the wife then she cannot sell the property. if there is no stipulation of coditional bequest then she she can sell the property on her own wish. there is no need to distribute the sale proceeds among her children if she wish the same.

Guest (n/a)     05 June 2008

Dear Sir,
A property was in the name of Mr X he had a property given by central government under the compenstaion from pakistan partition. He had written no will and the property was inherited by his daughter and one son. The daughter relingquished her property to his brotherin 1982. The son has two daughters and one son. He expeired in 2007 and had written a will. How correct is the will. Now one of the daughter wnats the claim in the property can she approach the court.

arunprakaash.m. (advocate)     06 June 2008

if the will is attested by two witnesses. it is valid no need to regitration. inyour case we have to see the parent docements wether it is freehold property or assigned property. if it is assigned one there may be restriction. if your property is free from encuberence then the will is valid in law. only the persons in whose favour will is written can get benefit. the other daughter can not claim. the beneficiary can approach the high court or dist court for getting will probated under the seal of the court.the opposite party can also petition for disqualification of will. the court will examine the verasity and geniencey of the will.

Guest (n/a)     08 June 2008

Dear Sir,


                Thanks for the reply. Sir the Person has got the property by inheritance and then he has written the will is it fair. he can write the will only for his share and not for the complete property.


Avinash Vasudeo

arunprakaash.m. (advocate)     09 June 2008

a person can make a will for a property which he holds presently and also for future profits and properties but not for others property.

Guest (n/a)     27 June 2008

Thanks for the answer to my queation. But 2nd and 3rd part of my questions remains unanswered. I will be grateful if that can be answered.

jayaveladvocate (Lawyer)     12 September 2008

Respected Sir,


The Hindu Succession(Amendment) Act proposes to give equal share to the daughter in a Hindu undivied family which in exisitence on a specified day i.e.2012.2004, but as per your version, there was no corpus or Karta on the crucial date Hence the amendment is not applicable



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