QUESTION: My late grandfather who died in 1925 left some properties. After some legal dispute between his two sons, the property under consideration devolved on my father, who died on November 24, 1989, while my mother also died on August 28, 1995. I am his only son with five sisters, three of them older than me and had been married before 1965, while the other two are not married. I have a married son.
My understanding is that the property received by my father through a court decree because of the difference he had with his brother should be treated as his individual property. On my father's death, I understand that myself and unmarried sisters would get equal rights and that married sisters would not get any share under the law prevailing on the date of death of my father, that is, on November 24, 1989. Would the right given to women by the Hindu Succession (Amendment) Act, 2005, with effect from December 20, 2004, have any effect on the right of my sisters? Advice is required as to the character of the property whether of Hindu Undivided Family or individual and the rights of my sisters to a share as well as the right to claim partition.
ANSWER: Since the reader's grandfather died in 1925 prior to the date on which Hindu Succession Act, 1956, came into force, such property will have to be treated as joint family property since it is inherited property. It should, therefore, make no difference whether the property was self-earned or inherited by the grandfather or whether the brothers got them through an amicable family partition or by a court decree. The property devolving on the father would therefore be treated as the joint family property consisting of the father as the karta, such joint family would include the reader, his mother and his five sisters.
One has to consider the rights of the sisters as on November 24, 1989, the date of death of the father. It is not correct to assume that the daughters had no right at all in the joint family property before the Amendment Act, 2005. They had a right in the father's share along with mother and brothers after the Hindu Succession Act, 1956. The only difference is that the Amendment Act gave them a larger right equal to that of the brother as a coparcener and not merely as a successor to the share of the father to be shared with the brothers and the mother as under the Hindu Succession Act, prior to amendment. It also requires notice that the mother's share out of the father's share in the joint family property will devolve on sons and daughters equally on her death on August 28, 1995, as it is her individual property.
But the right of the daughters prior to the Amendment Act demarcates their interest in the joint family property. Such right can be enforced on their demand for partition or on the occasion of partition. Since it appears that it has not been done, their right to this extent available on the pre-amendment law would remain with them.
But their right got enlarged, if they were unmarried under the State amendment which recognised the right of unmarried daughters in Andhra Pradesh with effect from September 5, 1985, Tamil Nadu with effect from March 25, 1989, Karnataka with effect from July 30, 1994 and Maharashtra with effect from June 22, 1984 with some other States following this law giving them equal right as the sons but confined only to the daughters who were unmarried as on the date on which the respective law came into force. But as stated earlier, if they had not asked for partition, their right will stand demarcated in the joint family property to be available to them on partition. But both married and unmarried daughters have a share out of mother's share, which will go to reduce the joint family property on mother's death.
Since the father died on November 24, 1989, after the law in Tamil Nadu had already come into force on March 25, 1989, the unmarried sisters therefore have a right in the joint family property equal to that of the reader. If, on the other hand, as presumed by the reader, the property was not joint family property but the absolute property of the father, both married and unmarried daughters on the father's death on November 24, 1989, after the Hindu Succession Act had come into force, would have equal right because the law would recognise succession of wife, mother, sons and daughters as Class-I heirs with equal right.
Hindu Succession (Amendment) Act, 2005, would make no difference on succession prior to September 5, 2005, the date on which it had come into force.
These are matters of civil law relating to which broad aspects of succession law are indicated in view of frequent enquiries addressed to this column. The reader is advised to get competent legal advice on the Hindu succession law, if he needs it.
The right of daughters prior to the Amendment Act demarcates their interest in the joint family property.