Intestate inheritance may be governed by succession laws

Hindu Succession (Amendment) Act, 2005, has changed daughter’s rights over father’s property


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My query is in light of a Supreme Court judgement on legal right of a daughter in father’s property. My father expired in 1985, leaving no Will. Our family has my mother, three sisters and me. I am the eldest child (son). Who is the beneficiary of the house property that was in my father’s name? My mother is paying the property tax.

—B. Shah

We are assuming that your father was a Hindu, that he was governed by Hindu laws and that the property is coparcenary property. Since no Will was made by your father, the inheritance of the house is governed by intestate succession under the provisions of the Hindu Succession Act, 1956 (“Act”). We are assuming that the judgment you are referring to is Prakash v. Phulavati (2015) 11 SCALE 643, decided on 16 October 2015. The Supreme Court held in this case that the amended provisions of the Hindu Succession (Amendment) Act, 2005 (i.e., amended Section 6 of the Act) do not have retrospective effect. Had your father been alive on 9 September 2005, his daughters would be co-sharers with their male siblings or coparceners of the joint Hindu family.

Since your father expired in 1985, the law of succession as it stood on the date of his demise will be applicable for the inheritance of his property. So, the benefits of the aforesaid 2005 amendment to the Act will not accrue to your sisters and the inheritance of the property will be governed by the old Section 6 of the Act as it stood prior to the amendment. Your sisters will not become coparceners of the joint Hindu family and only you and your father will be considered coparceners to the joint Hindu family.

Section 6 (old, i.e., prior to the 2005 amendment to the Act) provides as follows:

Devolution of interest in 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 and not by survivorship.

Since, your father was survived by one son and three daughters and his wife (all the female relatives are specified as class I heirs), the succession of the property will be governed by the proviso to the old Section 6. So, on the death of your father, his share in the said property will not pass on to the other coparcener by survivorship but devolve as per the rules of intestate succession that would govern him (since your father had not drawn up a Will).

To determine his share in the said property, the concept of ‘notional partition’ will have to be used, which is basically 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.

Technically, upon a notional partition of the said property, you and your father will each be entitled to one-half (1/2) of it. The one-half (1/2) portion of the said property which belongs to your father on partition will be subjected to succession according to proviso to Section 6. Therefore, one-half (1/2) of the said property will be divided among you, your mother and your three sisters.

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