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Renuka Gupta ( Gender Researcher )     04 August 2010

Land right of a daughter

Dear Ld. legal community, 

 

Does equal right of daughters to ancestral land  entitles them to claim this right,  even if paternal grandfather has left a legal document which specifically mentions that the land should go to the male children of his son. During his time the law which entitles women of equal share of the ancestral property( Here a house) was not existing. Does this progressive law applies in retrospect? My father as well as grandfather have both expired. The document also mentions that as long as my mother is alive, the house cannot be divided without her consent. 

Please advise.

 

Regards

RG 



Learning

 25 Replies

Srinivas (Director)     04 August 2010

Renuka,

Is the legal document a registered WILL?

Are there other co-owners in the property in addition to your grand-father? I ask this since a person on only WILL or GIFT his share in the property.

You will need to put some dates to put the case in prespective i.e when the legal document was executed. When your Granfather died, how long your brothers were in occupation of the property, etc.

 

Srinivas

Saurabh Chakravorty (Employed)     04 August 2010

Femalechild have an equal share in ancestral property as that of male child. But, the property which is self acquired by your father can be disposed off as per his wishes. The right of female child applies post 1956. It does not have retrospective effect.

Experts, pls comment.

  

Bhartiya No. 1 (Nationalist)     04 August 2010

Does the property of ur grandfather is self earned? What is the nature of that legal document?

As per me if it is self earned of ur granpa and if he has specifically mention like that then that document will stand.

Wait for the opinions of experts

Renuka Gupta ( Gender Researcher )     04 August 2010

We were living in the house since the childhood. It was a share my father got from my grandfather. My grandfather for some reason placed this condition that the house cant be sold and till my mother lives she will be considered as owner and after her male children from my father would share the property. I have not yet seen the document, so I don't know about the date etc. The house was handed over to my parents long back , perhaps 50 years back. Since the family shifted to other state, the house is still there but none live there, it is locked. 

Not that I have any contentions with my brothers and normally sisters forgo their rights for the sake of keeping good relations with the brothers. However, I would like to know the rights aspects since in this case it is specifically mentioned that the male children would have equal share of the house once my mother consent to it. 

Does the property rights laws can take effect in retrospect, though I know perhaps one cannot override a will even if it is gender biased. 

Regards

RG

 

Renuka Gupta ( Gender Researcher )     04 August 2010

I do not think it was a self earned property of my grand father; he himself got it as a share( I still have to check). Perhaps my great grand father had bought this property.   None is co owner of the property--that much is clear. My Father did not buy the property as it was handed over to my parents as their share when my grandfather's sons got separated  in his life time.  I am interested in this issue of girl child's rights from a theoretical perspective. When my grandfather had written this document, no such law existed in favor of women/girls, and once the law came into being, and never changed the document. My grandfather died 23 years back. 

Can  the girl children born after 1956 claim their rights to such land with all the facts mentioned in the first and second postings. 

RG

Srinivas (Director)     04 August 2010

Being ancestral propetry you will have a theoritical rights in a share of the property. Assuming there was no partition of the propert between the brothers with your concent, etc. There are few other factors such as "denial of your title" that could extinguish your rights in the property.

It will be advisable to consult a lawyer with case details and he can advise you correctly

Renuka Gupta ( Gender Researcher )     04 August 2010

Thank you all. I will wait for answers from legal experts. The property in question, I have come to know,  is bought by my grandfather. 

Bhartiya No. 1 (Nationalist)     05 August 2010

Then probably that conditional clause mention by u may stand depends upon the nature of the document, and whether the document has any force.

Also some the facts which one should know is

 

Daughters get equal share in their father's property, whether they r married or unmarried, if it is self earned in absence of any will.

If the property is ancestral then whoever has got married before 1956, will not get any share, those have married after that will get share in her father’s share, in absence of any will.

Also married women ( after 1956,) do not get share in ancestral living house or has been used for living purpose since generations (Khandani House) in partition of ancestral property. But what is the status in 2005 amendment, just check

Before 1956, the unmarried, widows, divorcees, ‘Parityaktas (abandoned) were had right to enjoy the ancestral property during her lifetime, but they do had right to alienate or sell, will gift etc.

Above is as per me according to “Mitakshara School of family” , let us wait for the opinion of other experts, or u may cross check with any good civil lawyer.

Srinivas (Director)     06 August 2010

Nice charaterization of the law for laymen. Great.

As per 2005 amendment, married women are also a co-parcener in a joint family property just like the males.


Srinivas

Bhartiya No. 1 (Nationalist)     06 August 2010

2005 amendment is a very good move and should have come much earlier. After all daughters too are living human being born from the same parent and from the same belly the mother.

But still there are lot of confusion is there regarding 2005 amendment of Succession Act. Like which is the cut off year, Is it retrospective? If the property had been alienated, then what will be the fate the buyer like this.

If any one enlighten us something about 2005 amendment.

Renuka Gupta ( Gender Researcher )     07 August 2010

Thanks. The 2005 law is not retrospective. I have gone through it, but at the moment do not have link. But you can google and download it.  

Pvt_RajKing (Private)     08 August 2010

I think all aspects relating to this tocpic was recently captured in a Karnataka HC judgement which can be downloaded from https://164.100.80.145:8080/dspace/handle/123456789/325834

Hope this helps....I gues without knowing the nature of the documents, it is difficult to assess the rights in this case... but if partition hasn't happened and if there is no will or legally enforceable documents then you should be good....

Srinivas (Director)     09 August 2010

I belive Pvt_Professional intended to point the following link:

 

https://164.100.80.145:8080/dspace/bitstream/123456789/324748/1/RFA326-04-19-03-2010.pdf

Renuka Gupta ( Gender Researcher )     09 August 2010

Thanks .But as I mentioned there is a will which debars girl children from any share of the property. 


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