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My sisters want to partition in the ancestral property

Shivendra Pratap Singh

Advocate

17/07/2019

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My father received some ancestral property from my grandfather.  The property is purely ancestral because my grandfather got it from his father. My father died in 1997 by leaving four sons and three daughters. I am the elder son of my father. I am an engineer and working with the NTPC.

After the death of my father, I somehow arranged the marriage of sisters. Now the sisters are claiming to share in the property which we received from the father. As per my knowledge about the share of a daughter in the ancestral property is that they are not entitled. Sir, please help us to provide proper advice on this matter. We will be grateful to you.

Question from: Bihar

Your information is correct. The daughter had no rights in the ancestral property until The Hindu Succession (Amendment) Act, 2005 came into force. The said amendment act came in to force in the year 2005. The amendment Act provides equal rights to the daughter in ancestral property. Daughter will get share in ancestral property if her father is alive on the date of enforcement of Amendment Act.

The said amendment came into force on 20  September 2005 but your father died in 1997. Therefore, your sisters are not entitled to get the share in the ancestral property. The ancestral property always devolves to the coparcener. Before the amendment Act 2005 daughters were not regarded as coparcener. Therefore, ancestral property was not devolve upon daughters.

In Prakash & Ors. V. Phulavati & Ors., (2016) 1 SCC (Civ) 549, the Supreme Court has held that if father has died prior to 20-09-2005 his daughters would have no right in the ancestral property. In this leading judgment the Supreme Court has overruled the decision of Prakash vs Phulavati case. Therefore, this advise became infructuous. because daughter gets right in ancestral property by birth.

Also read: Whether daughter has right in ancestral by birth?

Before the amendment

Before the Amendment Act, there was the gender bias in terms of inheritance of ancestral property. Only son was the coparceners therefore, daughter could not get share in the ancestral property. The Amendment Act has removed the gender biasness and made the daughter a coparcener in Hindu undivided family (HUF).  Hence she can claim her right in ancestral property equal to the share of son.

Your father died before the enforcement of the Amendment Act.  Consequently, in the current scenario, if your sisters move a petition before the court for the partition of the property, it will not succeed.

In the meantime, you should secure your right in the property and avoid any future litigation.  Thus you should file a declaratory suit.  All the four sons will be the party in the declaratory suit. The court will declare your right and refrain your sister to interfere in the property.

After the amendment

There is some confusion among the daughters that they got an absolute right in the ancestral property. However, in reality, the law is specifically made it clear about the rights of the daughter. According to the Act 2005, daughter gets right if the father dies after the date of enforcement of the amendment act. This mandatory condition does not meet in your case. Hence, they have no right in the ancestral property.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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