Yes, as per latest supreme court decision daughter's do have share in the ancestral property.
Daughter right on ancestral agriculture land
If a daughter was married before 2005 and her father passed away in 2006, can she claim a share in Ancestral Agriculture land? A will by Father was written in 1993 which was used in the mutation of land to brothers only. The will was only in favor of brothers. Please advise how to pursue this case. Is it still possible for a daughter to have a share in this Ancestral agriculture land?
Asked 4 years ago in Property Law
Religion: Hindu
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32 Answers
Kindly clarify on what basis you say it is ancestral land
2) if it is ancestral land you can file suit for partition to claim share in ancestral property
3) father cannot bequeath entire ancestral property by will
The date of death of father is relevant and not the date of marriage of the daughter.
Here the father having died after the amendment of Hindu Succession Act came into force, the daughter have equal rights with other legal heirs.
1. IF Agricultural property has positive history of atleast Four generations on Revenue Records, THEN irrespective of Father's WILL, the daughter is entitled to claim her share in EQUAL proportions, without any exceptions, whatsoever ....
2. However, IF above property was duly partitioned and partitioned share stands in sole name of Father and Father created WILL for this partitioned share THEN daughter is not entitled to claim and Father's WILL shall be enforced.
Keep Smiling .... Hemant Agarwal
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If the property was on the father's name then it cannot be considered as ancestral property.
If it was not ancestral property then the Will shall be valid.
Therefore the daughter may not be eligible for a share in the property as a right.
Her suit for a share in the property may not be maintainable.
it is possible
it is not necessary that the father of the daughter has to be alive on 9.9.2005 when the HSA was amended to recognise the coparcenory rights of daughters in HUF property
nor is there any restriction against a daughter from claiming in HUF property of her father if she is married
the father could have made a Will of only his undivided share in the HUF property and not the entire property
so the daughter can challenge the mutation in so far as it deals with her share as well
Dear Client,
Daughters have right in the property of the father if father dies intestine.
1. Irrespective of father's date of death and whether the daughter is married or not, the daughter is entitled to equal share in the ancestral property on par with her brothers.
2. A daughter can claim equal share in the ancestral property, provided she was alive as on Ninth September Two Thousand Five ([deleted]). If the daughter later on died, then her legal heirs can claim her share.
3. A Father could have executed a WILL bequeathing his entitled share in the property only to his sons and not the intended share of the daughters. In other words, the father's WILL will not be legally valid if he has bequeathed the entire property to his sons only.
4. To pursue the case, the points which are beneficial to the daughter are, the WILL executed by the father could take effect only after his death,i.e., 2006 - Hence this mutation has taken place after the amendment to the Hindu Succession Act 1956 in 2005, ignoring the rights of other coparcener (Daughter).
5. It's still possible for a daughter or her legal heirs to claim her share. Let her send a legal notice to her brothers to settle the matter amicably and if there's no positive response, let her file a suit in the jurisdictional civil court for partition, declaration and separate possession of the property by metes and bounds.
daughter now can claim the same any time in ancestral land. only restriction is that the said land should not be legally partitioned as per HSA
1. in the given scenario, she can claim her share in the ancestral property,
2. WILL was written in 1993, and, father died in 2006, therefore, the WILL came into force after the death i.e. in year 2006, resultantly, the daughter can ask for her share by filing a civil suit for the partition of the property, and to set aside the transfer of the property in the name of the brothers,
3. she is required to send a legal notice, first of all.
- As per law, now a daughter whether married or unmarried is having equal share in the Ancestral property i.e. an equal share in such a property accrues by birth itself. Before 2005, only sons had a share in such property.
- Further , as the father has passed away in 2006 , then the daughter can claim her right over the ancestral property.
- Further , a WILL is not valid , if the property is an ancestral., hence a daughter have her share in the agriculture land legally.
1. Yes she can claim her share from ancestral property.
2. Father cannot write will for ancestral property without it's partition but if partition was executed and will was written after partition then daughter cannot claim any share.
Thank you all for your answers. I have a follow up question. Since the WILL was written in 1993 and the amendment came in 2005. Does this mean that this case applies before the amendment came into effect and the land shares only apply to brothers, not to Sisters according to the amendment?
Asked 4 years ago
Will takes effect on death of testator
father died in 2006
if it is ancestral property then daughter has equal share in property and father could not have bequeathed it by will
The property has been disposed by the owner in the year by bequeathing the same through a testamentary disposition i.e., a Will.
This clearly indicates that this is not an ancestral property.
Therefore the daughter's right in the ancestral property do not arise.
The property owner has full rights to dispose the property belonging to him in any manner he may desire and to any person of his choice.
Hence don't be confused about the latest amendment in the Hindu succession act which shall not be applicable to this situation.
1. The WILL can take effect only after the Testator's death and can't take effect during the lifetime of the Testator.
2. In the instant case, the Testator died in 2006 (as per your narration) and he had executed the WILL in 1993 itself. When the amendment to the Hindu Succession Act 1956 was amended in 2005, the Testator was very much alive and he died in 2006, long after the amendment came into being and the WILL could take into effect only from 2006 ( the year of death of the Testator ). The WILL executed by the Testator can't be legally valid as the Testator died in 2006 and he was not legally competent to exclude his daughter/s, being coparcener/s on par with her/their brothers in the Ancestral property, when the amendment to the Hindu Succession Act 1956 in 2005 was effected. Hence Sisters are entitled to equal share on par with their brothers.
If the land is still under HUF status and brother are holding the land than brother has to give share to sister.
If the will is already executed then ste can't challenge it if the same is legitimate.Only if there was legal partition through registered deed or Court decree then also she can't
Again, thanks all for your answers! So, the WILL was written in 1993 and executed after the death of Father. How to recognize if this WILL was genuine in the state of Punjab? Does the WILL have to be registered somewhere after it was written? What are the rules for a genuine WILL?
Asked 4 years ago
If its not challenged then it's genuine
Registration of will is optional
2) it is not required to be on stamp paper
3) on.y requirement is that testator has to be mentally fit at time of execution of will
4) will has to be attested by 2 witnesses
1. Registration of WILL is not compulsory. Even unregistered WILL will have the same legal validity as that of a registered WILL.
2. To be a valid WILL, signature of two witnesses is a must.
3. The Testator must be of sound mind and there should not be any force, threat or coercion from anyone while executing a WILL.
4. A person can execute any number of WILLs during his lifetime and only a last one will only be considered as the legal one. All the previously executed WILL gets superceded by the latest WILL.
5. If any correction has to be carried out to the main WILL, it can be done, which is called as Codicil.
It is not mandatory to register the Will.
A Will shall be considered as valid if the testator has filed in all the pages and the same has been attested by attesting two witnesses.
Once the Will is having the above then the valid Will can be enforced by filing an application before the revenue department to transfer the revenue records from the name of the deceased to the names of the beneficiaries.
Under the Indian Succession Act 1925, a Will is a legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death
Certain formalities must be complied with in order to make a valid Will. It must be signed and attested , as required by law. ... A Will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator ..
you can file partition suit to claim share in ancestral property .
If father make will then it will prevail over the amendment because your father diesnt died intestate so there will be no question of intestate succession of his properties.
- If the property is ancestral , then no WILL can be executed in favour of anyone without distributed the property amongst all the legal heirs.
According to the local lawyer, as per Section 6 provision of Hindu Succession Act as applicable in the year 1993(The year when the Oldest son died), the land was supposed to be divided into 5 shares (4 sons & 1 father) right after oldest son died. And the widow of the oldest Son supposed to get her share in 1993 but this didn't happen. On this basis, the local lawyer will start to pursue 5 shares. The land is ancestral! All 5 daughters have given NOC at the time of mutation after the father died in 2006. Please share your opinion
Asked 4 years ago
Mutation does not confer title to property
2) entry in revenue records is only for payment of property taxes
3) mere NOC does not amount to relinquishment of share in property
4) daughters can claim share in property by filing suit for partition
You have initially stated that it is ancestral agricultural property but have not stated that whether the agricultural property is situated in UP state or any other state.
Because of inheritance law of agricultural law in UP state and other states differs even though there is a central law of inheritance, which is not applicable while the state rules prevail.
If the property is not situated in the state of UP, and if it was ancestral proeprty only after satisfying all the conditions that qualify this property for ancestral category, and if it is confirmed that it is an ancestral property only, then the share of your property shall again be divided between him and his sons into number of equal shares, as per the law prevailing in the year 1993.
However as per the latest amendment by supreme court in the year 2020, the amendment of the HSA has retrospective effect hence the daughters have equal rights in the property at par with the sons.
Thus if a daughter wants to claim her share in the ancestral property at this stage she can very well file a suit for partition and claim separate possession of her share even though the property was already partitioned among the sons earlier.
The NOC given by daughters at that time when the property was partitioned among the sons by an unregistered NOC deed is not valid and cannot be enforced in law.
The widow and her children of the predeceased son who is one of the legal heirs of their deceased father, are entitled to one such equal share in the property left behind by the father even if it was ancestral property.
Now you can decide about sharing the proeprty into such number of equal shares in accordance to number of the coparceners in the family to inherit the ancestral property.
NOC does not have any legal validity. A transfer of property will became valid only if it is done before the registrar office and all the parties should be personally present before the registrar. you can file partition suit and claim equal share.
If 5 given legal noc Then it can be registered easily
According to the local lawyer, as per Section 6 provision of Hindu Succession Act 1956 as applicable in the year 1993(The year when the Oldest son died), the land was supposed to be divide into 5 shares (4 sons & 1 father) right after oldest son died as the HSA act applicable at that time. And the widow of the oldest Son was supposed to get her share in 1993, but this didn't happen. On this basis, the local lawyer will start to pursue 5 shares on the basis of 1993 law. The land is ancestral! All 5 daughters have given NOC at the time of mutation after the father died in 2006. but if 5 daughters change their stand that they now want the share. In this case, the share for daughters will be from the father's 1/5 share that was divided after the oldest son's death, or the daughters can claim 9 shares before the oldest son's death. Please share your opinion
Asked 4 years ago
Daughters can claim one ninth share in property provided it is ancestral property
It is difficult to again seek share after giving legitimate noc or relinquishment of share. But even if they seek then the share of daughters will be addition to share of sons & sons widow.
First of all the Will was reportedly written in the year 1993 whereas the testator is reported to have died in the year 2006, hence the law as per the referred section 6 of HSA, 1956 in respect of coparcenary rights to the daughters in the ancestral or Hindu Joint family properties states as follows:
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 sub-section 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.
The Will was written in the year but comes into effect only after the death of the testator in the year 2006.
Therefore the daughters have become entitled to a rightful share in the ancestral property automatically implementing the amended law with effect from 2005, as coparceners.
The Will can be written at anytime, it can be enforced only when it will become effective, i.e., after the death of the testator.
Your lawyer's observation that the property shall be divided into 5 shares is incorrect position of law.
The property, upon the death of the father at this stage, shall be divided into nine equal shares and the daughters shall be allotted one such share besides the legal heirs of the deceased son who are also entitled to one such share.
Daughters can claim equal share in said ancestral property.