Photo: iStock
Photo: iStock

Daughter will not have rights over ancestral property if father died before 9 Sept 2005

The 2005 amendment granted equal rights of inheritance as that of a son to living daughters of living coparceners on or after 9 September 2005

An Indian-born relative of mine migrated to the UK and became a citizen there. He later took his wife, two daughters and son to the UK. He passed away in 1982. His wife still holds an Indian passport, while others are UK nationals. He left his father’s property and a self-acquired property in India. What is the procedure to make a partition deed between his wife and children?

—D. Saji

Assuming that the said relative is a Hindu, please note that upon his death, his Class I heirs (his wife and his children, and mother, if still alive) would be entitled to succession to his assets. Each of them would get an equal right over his estate and assets.

In relation to his father’s property, it needs to be seen whether such property has been bequeathed to your relative under a Will, or if he acquired a right in the same by way of intestate succession. We are assuming that this is not an ancestral property and hence it can be treated as self-acquired.

In relation to his self-acquired property, your relative would have clear and undisputed title over such asset. Assuming there is a clear title of the deceased over his assets, and that he has not executed any Will, his Class I heirs would need to obtain a valid succession certificate to inherit such assets. If he made a Will, a probate may be required.

Upon inheriting the said assets, a partition deed can be executed when all the family co-owners of the property mutually agree to the partition. Assuming that there is no disagreement, a partition deed is the best way forward. The deed itself is a complex document that requires surrender of rights over the remainder of the property, clear delineation of the boundaries and each person’s share, and other elements. Further, if certain properties are to remain under joint ownership, the partition deed would need to specifically state the rights and obligations of each of the parties. Approach a lawyer to get a deed drawn up. Note that stamp duty would be payable here, and appropriate tax filings would also be required.

Keep a certified copy of the title deeds, their description (such as area, location with survey numbers, and boundaries), and sub-registrar’s valuation handy when drafting the partition deed.

Do married daughters have rights over ancestral property in case the father passed away before the Hindu Succession (Amendment) Act, 2005? Kindly clarify.

—Debidatta Rath

The 2005 amendment to the Hindu Succession Act applies only to cases where the father was alive on or after 9 September 2005. In case the father passed away prior to this date, regardless of the daughter being alive on this date, the daughter will not get the benefit of this amendment and will, therefore, have no rights over the ancestral property.

In such a case, the ancestral property would devolve only upon the male coparceners of the Hindu Undivided Family (HUF), and form a part of their estate for succession purposes.

The 2005 amendment granted equal rights of inheritance as that of a son to living daughters of living coparceners on or after 9 September 2005. Hence, the rights granted to daughters under the 2005 amendment would be applicable to living daughters of living coparceners as on 9 September 2005, irrespective of when such daughters are born.

Rishabh Shroff is partner, Cyril Amarchand Mangaldas. Queries and views at mintmoney@livemint.com

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