Right of Daughters in Ancestral Property
The matter of daughters right of equality in ancestral property is still entangled in contradictory and complicated legal interpretation, now it is time to see Supreme Court decision in this regard.
Even after amendment of Hindu Succession Act, 2005, still the matter of daughters right of equality in ancestral property is entangled till date. As per one of the Supreme Court decision if father is died before 09 September 2005, daughter will have no right in ancestral property whereas as per second other decision, daughter will have rights in ancestral property.
Even there was arrangement made in law that if partition of ancestral property is done before 20 December 2004, than this amendment will not be applicable to such properties.
Due to this anomalous event, this matter has been sent on 05 December 208 to three judge bench (Arjan Sikri, Ashok Bhushan, M.R. Shah) which is under consideration.
With the influence of media’s evil propaganda, many people admit and believe that both son and daughter has equal right in mother-father property. Even wife has 50% right in husband earnings.
Why such discrimination? Son-daughters or wife has no right of property partition during lifetime of mother-father or husband and what is the requirement of such right?
Daughter has right in mother-father property, provided they die intestate. But generally people who have property, they never die intestate.
Daughter will get his share as per will, if someone challenge the will than daughters will go to Court for many years for legal proceedings.
This is also true that any person(female/male) can give self-acquired property to anyone, It is not necessary to give it to someone within family and it can be given as donation as well.
Undoubtedly, wife-son-daughter has no legal right of ancestral property partition during lifetime of mother-father.
As per MUHAMMADAN LAW Will cannot be made for more than one-third of property.
In Hindu Law, before amendment the partition of ancestral property occurs pnly within male successors.
The reference for Son-daughters here is only mean for the legitimate children. Illegitimate children is successor of only mother and not of father. Legitimate children are those who are born out of legitimate marriage. The Succession Law is meaningless with the unlimited right of Will.
Before Amendment, 2005, the indicative partition of ancestral property occurs between father and sons, and respective share of father is again equally partitioned between son-daughters.
Let us try to understand the aforesaid partition with the help of an example in simple terms. For example before Amendment, 2005, there are three son and two daughter and father got ancestral property of value Rs 100/-, than it was believed that if partition happens, than father and three son will get Rs 25/- each respectively, than father shares is equally divided within three son and two daughters each getting Rs 5/- respectively. It means three son will get 25 + 5 = 30 * 3 = Rs 90/- and two daughters will get 2 * 5 = Rs 10/-. After Amendment Act, 2005 all five children are getting Rs 20/- each or may get Rs 20/- each. But still most of the generous sisters do not take their share as per self-decision.
Hindu Succession Act, 1956, Section 6 (Applicable from 09 September 2005) there is a provision that if ancestral property is partitioned before 20 December 2006, than this amendment is not applicable on such property.
After Amendment Act, 2005, There is a provision in Hindu Succession Act that post amendment, if person is died intestate and ancestral property is include in deceased person property, than son-daughters will have equal rights in deceased person property. It is important to mention here that whatever share daughters get or may get not from fathers self-acquired property but from father’s ancestral property will be equal to brothers share or right. Whether daughters will get right in father’s ancestral property since birth or after death of father, this dispute is under consideration in Supreme Court.
As per Prakash Vs Phulvati, 2016 (2) SCC 36 Supreme Court decision(19 October 2015), daughters whose father died before 09 September, 2005 will not get any right or share from Amendment Act,2005.
Whereas as per Danamma Urf Suman Soorpur Vs Amar 2018 (1) Scale 657 Supreme Court other Bench decision (01 Feb 2018), daughters will have right since birth even if father died before 09 September 2005 and partition suit in this case was ongoing since 2003.
In case of Mangalam Vs T.B Raju, Supreme Court in his decision dated (19 April 2018), referred Phulvati decision as correct and clearly explained that it is necessary for father and daughter to be alive at the time of partition.
Approximate one month later, Delhi High Court in case of Vinita Sharma Vs Rakesh Sharma dated 15 May 2018, referred aforesaid Supreme Court decisions and put forward new narration of contradictory and complicated legal position in this behalf. Considering Phulvati case as correct, dismissed the appeal. But give special permission/certificate to file Appeal in Supreme Court to Clear legal position in these matters.
With these decisions, the legal position is contradictory and complicated. Let us see the decision of Supreme Court in this behalf.
Sir Rakesh Verma
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