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Ancestral property division between brother & sisters

2018-07-10 15:25:17
Ancestral property division between brother & sisters

·         The property is required to be at least four generations old.

·         Also, the same property shouldn't have been divided or partitioned earlier into the previous generations.

The right to share in the ancestral property is obtained by birth only, not like other types of inheritance for e.g. where inheritance can only be obtained after the death of the owner. The inheritance situation varies in the matters of self-acquired property and ancestral property. Self-acquired property and ancestral property are two very different concepts. In Self-acquired property, individual purchases the property with his own income. In this case, the owner can take away your share as well. For e.g. If your father purchased some property with his own money, he can eliminate your inheritance. Whereas, in ancestral property, no matter what the circumstances are the share cannot be taken away.

The claim on ancestral property comes through the accident of birth. Successive generation is responsible for deciding the claim as well as how many shares will be given to each individual. Successive generation decides the shares. A property won't be considered ancestral property if it is inherited from: -

·         Mother

·         Uncle

·         Brother

·         Or Grandmother

For the partition of ancestral property, a partition notice or a declaration of separation or a partition agreement has to be made. Partition of ancestral property can also be done via arbitration or suits. For example, if the ancestral property is to be divided between 5 people, per person equal share will be 1/5th. If the party who has the right in ancestral property is denied of the same, the aggrieved party should send a legal notice. The party can claim the share if a suit is filed for partition of the ancestral property and is contested in the court. In the case where the ancestral property was sold off without the consent of the party who has a share, in that situation the buyer is also included as a party and to claim one's share a suit is filed. 

"Daughters also have a share in ancestral property". It came into existence after the amendment in the Hindu Succession Act, 2005. In a landmark judgment of Prakash v. Phulvati, it is held by the Supreme Court of India that daughters who are born in 1956 will be eligible for an equal share in their ancestral property just like the sons. This judgment was given in an appeal filed by the daughters who challenged a decree, where they were excluded from the partition. The trial court refused the shares of daughters in the ancestral property on the grounds that they were born before the enactment of Hindu Succession Act, 1956. The Supreme Court of India, later on, held that daughters are also entitled to the benefits provided under the 2005 amendment of the Hindu Succession Act, 2005.

The Section 6 of the Hindu Succession Act, 1956:-

Devolution of interest of coparcenary property

When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

PROVIDED that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

The Amended Section 6 of the Hindu Succession Act, 2005: -

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 subsection 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 subsection (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 dying 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 subsection, 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.

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