Ancestral Property?

Question

My grand father has ancestral property. He mad the will at the age of 7-15 years for his 5 sons each having 8 acres of land and kept 12 acrs of land in his name. He has 2 dauthers now my father is died. Now all the sons are planing to get share the remaining 12 acrs with out giving equal share to the daughters. Can this be challenged. I heard that Anchestral Property cannot be made will. If made it should be equal share. Please suggest.
Property in bangalore

Answer 1

This is a very ticklish situation where the father whom you say was holding ancestral property partitioned it which you call will here,with each of the five sons getting 8 acres of land & 12 acres of land was kept by the karta i.e. the father himself. Once this partition took place the very fact each of the coparcener i.e. 5 sons & father got their part of share in this property which became their self acquired property. Now this father having 12 acres of land died intestate i.e. without leaving any will with regard to this property hence this land has to be divided amongst all his class 1 heirs who are his wife (if alive), all his sons, all his daughters & his mother (if alive) etc in equal portion. This is with regard to distribution of any such property left by any Hindu who died without leaving any will according to section 10 of the Hindu Succession Act, 1956. Distribution of property among heirs in class 1 of the Schedule. - The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:-

Rule1.- The intestate’s widow, or if there are more widow than one, all the widows together, shall take one share.

Rule 2.- The surviving sons and daughter and the mother of the intestate shall each take one share.

Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.

Rule 4.- The distribution of the share referred to in Rule 3-

(i) among the heirs in the branch of the pre-deceased son shall be son made that his widow (or widows together) and the surviving sons and daughters get equal portions, and the branch of his pre-deceased sons gets the same portion.

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
I have not yet touched the share of daughters in the whole of the ancestral property which was before the partition which took place 7-15 years back as at that time as a general rule of law, the daughters were not considered coparcener as the son to share equally in the said ancestral property as this benefit has now been bestowed to them with a recent amendment in section 6 of the Hindu Succession Act,1956 by Hindu Law Amendment Act 39 of 2005, that include even the daughter to have share in such ancestral property after coming of this recent amendment. However, let me bring to your notice even prior Hindu Law Amendment Act 39 of 2005 to some of the State Legislatures have passed laws granting equal status to the woman. How ever under Article 246(2) of the Constitution Law enacted by the parliament will prevails over the law enacted by the state legislature in the matters found in the Concurrent list of the Constitution of India. Thus the Hindu Law Amendment Act will prevail over every inconsistent state legislation. But in case of state of Karnataka which had introduced Section 6-A to this Hindu Succession Act to be applicable for the State only and it came into effect on and from July 30, 1994.

The main objective of this amendment was to remove the discrimination against daughters in the Mitakshara Personal Law in respect of Mitakshara Coparcenary Property which conferred right by birth only to sons and excluded the daughters. This exclusion is sought to be removed and the daughters are also sought to be conferred the right by birth in the coparcenary property.

The relevant portions of Section 6-A are reproduced below:

"a) In a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;

b) At a partition in such a Joint Hindu Family, the coparcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son".

In the absence of such a law in other States, the daughters could not become coparceners till the Hindu Succession Amendment (39 of 2005) Act, 1956, came into effect from September 9, 2005.
Hence considering this provision applicable to any woman from Banglore, if the partition of such ancestral property was being done after July 30,1994 then this woman being a coparcener had same right to claim by survivorship such property that was held by the father as other sons or her brothers, which can also be challenged in the court with regard to partition that took place 7-15 years back as you stated in your question.

Answer 2

All children, grand children have an equal right over the ancestral property. Male or Female, does not matter. All have equal right on the 12 acres for which a will was not made.

Answer 3

Daughters are definitely having equal share. Make your own property and bring up healthy , strong, intelligent and affectionate children, who will build strong careers. No need to bother about ancestral property. Let the elders decide the right thing.

Answer 4

After amendment in Hindu Succession Act, daughters have equal shares.

If the property was held by your grandfather in his capacity as Karta or Manager of Hindu Undivided Family, then he is not entitled to make Will of entire family property. He could have made Will only in respect of his hypothetical share.

You need to first ascertain nature of ownership of the property i.e. HUF or Individual property. If it is HUF property, you can challenge the Will.

Answer 5

It is correct. The boys take all. Girls have no property inheritance rights.