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PREMNATH G S (NO)     14 September 2010

woman's right in ancestral property

dear all,

summery

I have 2 brothers and 2 sisters we are totally 5, we had a property which is bought before independence and it is in the Joint name of my grand father and my father. we three brothers lived in that home along with our mother. 1 of my brother and his wife died in 2001 and my mother died in 2003, I have occupied their rooms after their death since I have 4 sons and 1 daughter. also I run a printing press inside the home to move my life. but now my brothers and sisters demanding an equal right in that home. They force me to sell and share the proceeds equally, and now i feel greatly isolated by them and I need a 50% of property for my survival. I have spend so much money  for carring out the repairs and maintenance in that home so far. but i failed to maintain any account for it. now my siblings are seeking my eviction from the rooms i have occupied. what is the remedy available for me?



 24 Replies

Srinivas (Director)     14 September 2010

I am assuming your father died intestate (i.e no WILL was written). From what you described, your brothers and sister too will have a right in the property since this was *NOT*  your self acquired property.

PREMNATH G S (NO)     14 September 2010

thank you for prompt reply

your presumption is correct as you said it is an intestate document. But do they can challange my present occupied portion with that home with which i survive. also the two brothers who are supporting the sisters are given their daughters to their sisters sons. now they have good relationship. equal share of this property will be of more benefit to them as they got double shares each on their side. but i will be getting an meagre 20% which questions my family's survival.

one doubt.

since the asset is in joint name of my grand father and father . it is not passes through four generation, due to that can i establish the property as not an ancestral property?

also what about the maintenance i did so for. these womans have not spend even a single rupee for the house so for. suddenly how could they challenge me by virtue of 2005 amendment section 6 of the Hindu succession act 1956?

Srinivas (Director)     14 September 2010

Premnath,

Daughter will have right even if the property is self acquired by your father as per Hindu Succession Act.

The 2005 amendment extended womans rights to ancestral property.

Any money you spent on improving the property is unfortunately going to come at your cost.


By law you will only get the 20%share. If you want you can drag the matters in court as most litigants do. This will buy you time but will also cause lost of relationship, etc.

 

Srinivas,

Vinoba (Advocate)     14 September 2010

Hello

Women's right to ancestral property is granted vide an amendment to Hindu succession act (act 1 of 1990) with retrospective effect from 22-03-1989.  As per the amendment any women who had married prior to amendment act of 1 of 1990 i.e, 22-03-1989, then she is not entitled for any right of share in the ancestral property.  Whereas if her marriage is after 22-03-1989 she is definitely entitled for a share in the property.

L. Vinoba

Advocate

Pondicherry

PREMNATH G S (NO)     16 September 2010

Thanks to Mr. Srinivas and to Mr. Vinoba for you have expressed your views.

I further request you to advice in light of the article I come across in lawersclubindia.

also tell the property which i stated is an ancestral property or Self acquired property

 

lawyersclubindia Article

Hindu Succession (Amendment) Act, 2005 –Empowering Women? Westernization and globalization have radically changed the face of India. This change is most evident in its effect on the Hindu Joint Family system. Families that would give the saas-bahu serials of today a run for their money have now given way to nuclear families. With the advent of modernization and the feminist movement gaining ground, the woman no longer plays a subservient role in society and indeed has overshadowed man in most fields. In the era of feminism, uncomfortable questions arise as regards the role of age-old customs and traditions of Hinduism in the modern world. For instance, does the bastion of Hindu Law - the Hindu Succession Act, 1956 ascribe an equal status to men and women? Can Hindu women now claim a right to ancestral property-a right that has been denied of them since times immemorial? Are woman truly on the same legal footing as men? An analysis of the Hindu Succession Act, 1956 (“Act”) and the forward looking amendments thereto would seem to suggest as much. This Article analyses monumental change introduced into Hindu law through the Hindu Succession (Amendment) Act, 2005 (“the Amendment Act”).

It postulates that that while the wording of Section 6 might be couched in ambiguity, the section needs to be given the widest possible interpretation to ensure that the broad changes concerning the status and rights of women in respect of coparcenary property are not defeated by resorting to legalese. Introduction of new Section 6: The Amendment Act introduced a new section 6 into the Act, by virtue of which a daughter of a coparcener in a joint Hindu family governed by Mitakshara law becomes a coparcener in her own right and enjoys rights equal to those enjoyed by the son of a coparcener.

 

The relevant part of Section 6 reads as follows: “6. (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) also by birth become a coparcener in her own right; the same manner as the son here; (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 and disabilities 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: …” Implications: The newly introduced section 6 provides that a daughter shall by birth become a coparcener in her own right. The implications of the introduction prima facie appear to be that a daughter stands on an equal footing with a son of a coparcener and is invested with all rights, including the right to seek partition of the coparcenary property. Problematic interpretations: The newly introduced section 6 begins with the words “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”.

 

 A question therefore arises as to the status of women married prior to the commencement of the Amendment Act, i.e. prior to 9th September 2005 (“said commencement date”). In other words, would women married prior to the said commencement date have a right to claim a share in partition of joint family property occurring subsequent to the said commencement date? Arguments in favour of wide interpretation: A perusal of the Opening Speeches at the time of introduction of the Hindu Succession (Amendment) Bill, 2004 in Parliament; consideration of the Statement of Objects and Reasons of the Amendment Act and comparison with existing State legislations seems to lead to the conclusion that the Amendment seeks to introduce the concept of gender equality and consequently draws no specific distinction between married and unmarried women.

 

The decision of the Karnataka High Court in Sugalabai v. Gundappa A. Maradi and Ors {ILR 2007 KAR 4790:2008 (2) Kar LJ 406} tends to give some credence to this view as well. A. Opening Speeches at the time of introduction of the Hindu Succession (Amendment) Bill, 2004 in Parliament A perusal of the Opening Speeches at the time of the introduction of the Hindu Succession (Amendment) Bill, 2004 in Parliament clearly establishes the intention of the Legislature in respect of applicability of the newly introduced Section 6 to married women:

 

The Hon’ble Law Minister H.R Bharadwaj in his introductory address in the Rajya Sabha observed: “…Sir, this has to be improved further and now the present law makes certain provisions. The benefit of the proposed new section relating to devolution of interest in coparcenary property is one item, and, declaring daughters also as coparceners by birth is proposed to be extended to married daughters as well subject to the condition that it shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which has taken place before the introduction of this Bill in Rajya Sabha on 20th December, 2004. (emphasis supplied)

 

Similarly, in his opening address in the Lok Sabha, the Hon’ble Law Minister observed: “…By this Bill, we are amending Section 6 to enable devolution of interest in coparcenary property to daughters, both married and unmarried…” An extract of the Parliamentary Debate in the Lok Sabha would, put the matter to rest: “A question was asked here whether the property will devolve only on the married daughter or on the unmarried daughter also. Another point was raised that this provision should be extended to the married daughter also. I feel that it would be possible to extend this provision to the married women also if it is not going to bring a large number of litigations. But the Hindu society, as we know, cannot tolerate this as we cannot fix the cut-off date for it. If the Government can have a cut-off date, say for example, daughter married before 10 years or from such and such date, then I would be happy that this provision of the right to property is extended to married women also. THE MINISTER OF LAW AND JUSTICE (SHRI H.R. BHARDWAJ): Actually, we have provided it for married women also. I have moved an amendment in the Rajya Sabha for it, and it has been carried. PROF. M. RAMADASS : Then it is all right. I am very happy that you have taken note of our view also. MR. CHAIRMAN: The Standing Committee has also recommended it.” (emphasis supplied)

 

It is clear from the above that the intention of the Parliament at the time of introduction of the Hindu Succession (Amendment) Bill, 2004 itself was that the newly introduced section 6 would confer coparcenary rights by birth upon women, irrespective of whether they were married prior to the said commencement date.

 B. Statement of Objects and Reasons of the said Amendment The provisions of the amended Section 6 of the Act have been introduced with the avowed objective of “removing the discrimination contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in Hindu Mitakshara coparcenary property as the sons have.” It was felt that the retention of Mitakshara coparcenary property without including the females in it meant that females could not inherit as their male counterparts did and that the existing law by excluding the daughter from participating in coparcenary ownership not only contributed to her discrimination on the grounds of gender but also led to oppression and negation of her fundamental right to equality guaranteed by the Constitution. The Amendment is thus clearly a social welfare legislation and consequently, in accordance with considerable judicial dicta must be given the broadest possible interpretation. As the Amendment does not specifically draw a distinction between married and unmarried women, reading such a distinction into the provisions of the newly introduced Section 6 would unnaturally restrict the scope and applicability of the said Section and be self-defeating in as much as the principal objective of gender equality would be available only to women unmarried as of the said commencement date.

 

C. Comparison with existing State legislations “Succession” is a subject falling under the Concurrent List of the Seventh Schedule to the Constitution and consequently both the Centre and the States have the power to legislate on the said subject. It is pertinent to note that a few states like Maharashtra, Andhra Pradesh, Karnataka etc. had enacted legislations prior to the commencement of the said Amendment Act containing provisions similar to the new Section 6 of the Act. These State legislations specifically draw a distinction between married and unmarried daughters:

 

i. Maharashtra “29-A(iv). Nothing contained in this Chapter shall apply to a daughter married before the date of commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994”.

ii. Andhra Pradesh “29-A(iv). Nothing in Cl (ii) shall apply to prior a daughter married to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986”

iii. Karnataka “6A(d) nothing contained in clause(b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990.”

 

It is clear from the above that while various State legislations specifically draw a distinction between a married daughter and an unmarried daughter, the newly introduced Section 6 does not draw any such distinction. Given the fact that the said Amendment Act is social welfare legislation, it must be beneficially construed so as to include all classes of persons not specifically excluded from its purview.

 

D. Analysis of case-law In Sugalabai v. Gundappa A. Maradi and Ors {ILR 2007 KAR 4790 : 2008 (2) Kar LJ 406}, the specific question before the Court was whether a daughter who was married prior to the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990 would be entitled to a share as a coparcener in light of section 6-A(d) of the Hindu Succession (Karnataka Amendment) Act 1990 (extracted above) read with the amended section 6 of the Act. The Court observed: “50. Thus, to conclude the discussion on the point under consideration, in the wake of the aforesaid principles laid down by the Apex Court and by this Court in the cases referred to above, and also taking into account the provisions contained in Section 6-A(d) of the Karnataka Act 1990 and the Central Amendment Act of 2005, I find myself fully in agreement with the submissions made by the learned senior counsel Sri. V. Tarakaram and learned counsel Sri. Desai and Sri. Balakrishna Shastry that Section 6-A(d) of the Karnataka Amendment Act 1990, cannot, but be termed as repugnant to the Central Act of 2005 and as such, the said provision contained in Section 6-A(d) which excludes a daughter, married prior to coming into force of the Karnataka Amendment Act, 1990, from being entitled to be treated as a co-parcener, is void and ceases to have any affect.

 

Point No. 1, is accordingly answered. … As far as the second question of law is concerned, it is the submission of the learned counsel Sri. Desai that the lower appellate Court erred in modifying the share of the appellant from 1/4th to 1/8th and in effecting the said modification, the lower appellate Court proceeded on the footing that the appellant being a married daughter will not be entitled to claim partition as she was not a co-parcener. In view of the change in the law brought about by the Karnataka Amendment Act of 1990, giving the daughter equal right as that of a son at partition in respect of co-parcenary property, and further, this Court having taken the view that Section 6-A(d) of the State Act being repugnant to the Central Act of 2005 the disability that a daughter married prior to coming into force the Karnataka Amendment Act, 1990, being ineligible, ceases to have any effect and consequently the view taken by the lower appellate Court in reducing the share of the appellant from 1/4th to l/8th cannot be upheld in law.” (emphasis supplied)

 

Conclusion:

 In light of the above, it seems clear that the newly introduced Section 6 would be applicable to all daughters, whether married or unmarried prior to the said commencement date. The Amendment Act therefore goes a long way towards the establishment of gender equality and abolition of the patrilineal system of inheritance prevailing among Hindus.

Srinivas (Director)     16 September 2010

Dear Premnath,

I have seen quite a few definitions for what is considered ancestral property. This is a questions for the experts on this forum.

Some of the definitions I have seen is that if the property was joinly enjoyed by 4 generations of "males" (I guess this now encompasses women as well).


If you do come across a good definition of the tests that are applied to determine if property is ancestral or not please post.

Srinivas

PREMNATH G S (NO)     17 September 2010

dear srinivas, thank you for the reply

in your earlier reply you have stated that women have equal right in father's self acquired property even before the 2005 amendment.

can you sight any decided case laws for it or can you quote from where you arrive that answer

regards

PREMNATH G S

Srinivas (Director)     21 September 2010

Dear Premnath,

 

Sorry for not getting back earlier. Daughters are considered Class 1 heir as per Hindu Succession Act of 1956.

 

There was also a very good review of the history of womens rights by a Karnataka HC posted in this forum.

I will re-post it in this thread if I run into it again.

 

Srinivas

SUNDARESAN P (Secretary)     24 September 2010

According to Hindu succession Act 1958 (amendment Act 2005) Section 8 (a) - General rules of succession in case of Males dying intestate and schedule, Female children are also Class 1 heirs.      

PREMNATH G S (NO)     25 September 2010

thanks to mr. sunderesan for you gave me your reply

recently i went and met a lawyer concerning this issue.

he said women's who got married berofe 1989 have no rights with the ancestral property. he also showed a recently decided case of highcourt .

in that case the justice stated that the 2005 amendment is not talks about the married daughter. but according to the tamilnadu govt. it clearly says that women who have got married before 11989 have no right in ancesstral property.

Right now i do not have facts , date and name of the case law

soon i will post it in this forum

regards

PREMNATH G S

Hitender Gaur (Self Employed)     25 September 2010

Yes, Shriniwasan and Sunderesan P is right, You are not entitled for any amount from your sister or brother side, and they have right to claim the share in the property as per Hindu succession Act 1958 (amendment Act 2005) Section 8 (a) - General rules of succession in case of Males dying intestate and schedule, Female children are also Class 1 heir.

PREMNATH G S (NO)     29 September 2010

Thanks to Mr. Hitender Gaur for you also posted your valuble reply thru our forum

kindly see the case Iaw as i stated before

 

 

Parameswari@Gnanasakthi v. Raja Ratinam

 

(P.R. Shivakumar, J.)

 

2010 (5) CTC 51

 

IN THE HIGH COURT OF MADRAS

 

P.R.Shivakumar, J

 

A.S.Nos.676 and 857 of 2002

 

14.06.2010

 

A.S.NO.676 OF 2002:

 

Parameswari@Gnanasakthi                                                                          …….Appellent

 

Vs

 

1. Raja Ratinam 2. Bala Ganesan 3. Mrs. Santhi w/o Mr. Ganesan         ……Respondents

 

A.S.No.857 of 2002:

Raja Ratinam                                                                                                 ……Appellant

 

Vs.

 

1. Parameswari@Gnanasakthi 2. Bala Ganesan 3. Mrs. Santhi w/o Mr. Ganesan …

                                                                                                                   ……Respondents

 

Hindu Succession Act, 1955 (25 of 1955) – Hindu Succession (Amendment) Act, 2005 (39 of 2005) –Effect of – Daughters, who were married befire coming into force of Tamil Nadu Act 1 of 1990 on 25.03.1989, werw not entitled to benefit of same – Since marriage of Plaintiff took place in year 1975, she is not entitled to benefit of Tamil Nadu act 1 of 1990 – Tamil Nadu Act 1 of 1990 has been replaced by a similar provision viz. Hindu Succession (Amendment) Act, 2005 – Appeal filed by 1st Defendant dismissed – Appeal Filed  by plaintiff partially allowed.

 

Facts: Two Appeals arose out of s suit for partition.  Plaintiff had filed the Appeal against the disallowed portion of her claim and the 1st Defendant had challenged the preliminary decree.  High court, amongst other issues, dealt with the right of daughters under the Hindu succession Act, prior to 1989 and after 2005 and the effect of Tamil Nadu Act 1 of 1990 and Hindu Succession (Amendment) Act, 2005

 

Held: The Amendment brought by Hindu Succession (Tamil Nadu Amendment Act, 1989 made the daughters, who were not married on the of commencement of the said amendment alone as coparceners and those who were married before the date of commencement of amendment were not entitled to the benefit of amendment.
The said amendment has now been replaced by a similar provision by the central act, namely Hindu Succession (Amendment) Act, 2005.  The Said amendment was not given retrospective effect.  But, so far as Tamil Nadu is concerned, the said amendment was given effect to from 25.03.1989.  In this case the Plaintiff shall not be benefited by the amendment, as admittedly she got married before the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989. P.W.1 admits that his marriage with the Plaintiff took place in 1975.  As such Kalayanasabesa Deekshidhar and his son, namely the second Defendant alone were the coparceners entitled to equal share in the Suit “A” schedule property and on the death of Kalayanasabesa Deekshidhar, his half share devolved upon his children namely the Plaintiff and the Second Defendant.  Thus the Plaintiff became entitled the ¼ share and the Second Defendant became entitled to
½ + ¼ = ¾ share.  The said ¾ share of the Second Defendant was conveyed by him to the Third Defendant under a Sale deed dated 06.09.1999, a copy of which has been marked as Ex.B29.  Therefore, there is no defect or infirmity in the finding of the Trial Court that the Plaintiff is entitled to ¼ share alone in Suit “A”  schedule property and the remaining 3/4  belong to the  third defendant, who has derived title from the Second Defendant.  The court below has rightly come to the conclusion that the Plaintiff shall be entitled to a preliminary decree for partition of the Suit “A” schedule property direction the division of the same into four equal shares and allotment of one such share to the Plaintiff and for the application of provisions of the Partition Act in case the property is found to be indivisible.                                                                                                             [Para 28]

 

CASES REFERRED

 

M. Sahnmugha Udayar v. Sivanandam, 1993 (2)MLJ 617---[Relied on]------------------------------------26,27

Municipal Council, Mandasur v. Fakrichand, AIR 1997 SC 1251 -- -----------------[Distinguished}…..24,25

S.P.S.Balasubramanyam v. Suruttayam alias Andali Parayachi, 1994 (1) SCC 460

[Distinguished] ----------------------------------------------------------------------------------------------------------24

 

Gopinath for C. Chandrabose, Advocate for  Appellant in A.S.No.676 of 2002  and for Respondent No.1. in A.S. No. 857 of 2002; Mr. A.P. Suryaprakasam, Advocate for Appellant in A.S. No.857 of 2002 and for Respondent No. 1 in A.S.No676 of 2002.

Srinath Sridevan, Advocate for Respondent No.3 in both A.S.

 

A.S.No.676 of 2002 ALLOWED IN PART - A.S. No.857 of 2002 DISMISSED –NO COSTS

 

Prayer: A.S. No.676 of 2002: Appeal filed under section 96 of the Civil Procedure Code against the judgment and Decree of the Additional District judge, Chidambaram dated 16.04.2002 made in O.S.NO.9/2002.

 

A.S. No.857 of 2002: Appeal filed under section 96 of the Civil Procedure code against the Judgment and Decree of the Aditional District Judge,Chidambaram dated 16.04.2002 made in O.S. No.9/2002.

 

 

 

 

 

 

 

 

girishankar (manager)     05 October 2010

Thanks

SUNDARESAN P (Secretary)     05 October 2010

This refers to the queries, the comment of Mr. Vinobha and the brief outline of the judgement reproduced. 

By this post, I request our learned counsels to please revisit these and confirm, after careful perusal of the Judgement reproduced, especially.

The dateline of events seems thus:

>> The wedding (of the daughter) happened in 1975

>> The Tamilnadu Act 1 of 1990 became effective 25-3-1989.

>> The partition in question had happened somewhere around 2002 (wherein the daughter was disallowed.)

>> The Hindu Succession (Amendment) Act came into being 2005.

Could it be, Sirs, that

(1)     the daughter cannot claim the benefit offered by the TN Act 1990, because her WEDDING HAD HAPPENED BEFORE (in 1975).

(2)    She cannot now claim the benefit offered by the Amendment Act in 2005 (though the Amendment  does not differentiate between a married daughter and an unmarried daughter) because the THE PARTITION IN QUESTION HAD HAPPENED PRIOR TO 2005. ?

We will wait for our learned Counsels to clarify the above, because, if the above line of assumption is correct,  it would then mean that:

The Amendment Act 2005 repeals all relevant  State Acts enacted prior to it, being repugnant to it to this extent.

In case of the father dying intestate, all daughters (or if the daughter has predeceased, her children) are Class I heirs, irrespective of the status / date of their marriage

I eagerly await the clarification(s).

Thanks.

 

 


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