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Ancestral property

By Shivendra Pratap Singh

My grandfather had purchased 18 acres of agricultural land and owned one house. He expired in 1969 leaving behind one son (my father) and one daughter. My father’s sister got married in 1943 and she had one daughter (born in 1944).

My grandmother expired in 1974. my father’s sister expired in 2002. My father’s sisters daughter got married in 1971. My father has expired in 2014. now my father’s sisters daughter is asking for a share in my grandfather’s property. Is she eligible & if so what would be her share?

According to the Hindu Succession Act, the only coparcener has right in ancestral property. Before the amendment in section 6 of the said act, only male linear member of the joint Hindu is included in coparcener. Therefore only male members of joint Hindu family can claim their right in ancestral property. After the amendment daughter is also included in the coparcenary system and she also accrued right in ancestral property. She has the same right as a son in the ancestral property. She can claim its partition.

After the judgment of Prakash vs Phulvati AIR 2015, the Supreme Court of India has held that only those daughter has right in the ancestral property whose father was alive at the time of amendment i.e. 20 December 2004, if father has died before that date she cannot claim share because she is not treated as a coparcener.

In your case, the daughter of your father’s sister [ hereinafter said Z ] cannot claim a share in the property. When your grandfather dies in the year 1974 all of his ancestral property was devolved in his son (your father) excluding his daughter because at that time daughter had no right in the ancestral property except maintenance and expense of her marriage.

When the ancestral property was devolved in your father it became subject to the ancestral property only for his legal heir and Z is no legal heir of your father so she cannot claim her share in ancestral property. If her mother had no right in ancestral property of her father then how can she accrue such right? Without satisfying this question her suit shall not be maintainable.

And she cannot satisfy the court because there is a legal maxim i.e. Nemo dat quod non habet means “no one gives what he doesn’t have” so when her mother had no such right how could she gave it to her daughter.

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