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Sonali B   23 June 2021

Right on ancestral property

My mom's father divided the ancestral property and gave it to his two sons. This was done 42 years ago. Now my mother has asked one of the brothers for her share as one has refused outright. This brother says father made it on my name. Now it is mine. Can my mother fight for it now?



 2 Replies

Nirali Nayak   24 June 2021

Hello mam, greetings of the day.
As per your query, if the father has divided the ancestral property and given to his sons, then the daughter cannot claim rights over it.  According to the Hindu Succession (Amendment) Act 2005, daughters have the same right as sons to their father's self-acquired property, if only the father dies intestate, that is, without making a will. So if the father has made the will and gave his ancestral properties to his sons then no one can claim rights over that property. In the 2005 judgement, it was ruled that a daughter has the same rights provided that both father and daughter were alive on September 9, 2005. But in 2018, the Supreme Court stated that a daughter can inherit her deceased father’s property in spite of the fact that whether the father was alive on this date or not. Hence, women were also accepted as coparceners. You can also challenge your father’s will. But before that you must verify that whether the property was self acquired property or ancestral. You have rights over the ancestral property but if the property was self-acquired by your father, then he has absolute right to execute his will under section 30 of Hindu succession act.
Hope this helps
Regards
Nirali Nayak
Law Student

Vasundhara Singh (Student)     29 June 2021

Hello!

If the ancestral property was already divided then it becomes the self-acquired property and the father has the right to name the property to any person he wishes to. But if the property has not been divided then all the coparceners or legal heirs have right over it. It has been mentioned by you that the transfer took place 42 years back which means it was before the 2005 amendment to Hindu Succession Act, 1956. Before this amendment, only male heirs were treated as coparceners and had the right over the property whereas daughters had no rights.

After the amendment, daughters, and sons are treated apar, and daughters were given equal rights of coparcenary as the son. But the Supreme Court and various High Courts have decided that the amendment did not have retrospective effect, which means it will not apply to partitions that took place before 2005. Therefore, in your query, your mother cannot claim rights over the property as the partition took place before 2005 and she will not be treated as a coparcener. She cannot fight for the claim over property as she has no right over it.

Regards

Vasundhara Singh


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