Dear Learned Lawyers.
I am a person with no background in law and regarding one of my personal case, regarding the right of my mother in her father’s property, I would like your valuable suggestions on some issues.
TOPIC 1
Firstly, as far as my knowledge about succession goes, it is as under:-
1. That THE HINDU SUCCESSION ACT 1956 defines two kinds of properties with different rules of succession:
- ) Coparcener Property (Section 6)
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.
A Hindu Mitakshara Coparcenary is a body narrower than a Hindu joint family and consists only of males of up to 4 generations who acquire an interest in the Coparcenary property or the joint family property by birth with a unity of possession. The person having interest in the coparcenary property is known as a coparcener.
Coparcenary property consists of the ancestral property and not the separate property of a coparcener. Ancestral property is the property inherited by a Hindu from his father, father’s father or father’s, father’s father whereas the property inherited from any other relation or the self-acquired property of the person is his separate property.
b) The property of a Male Hindu dying intestate (a property acquired by “him”) (Section 8)
In this the daughters and sons come in Class I heirs.
So as far as the daughters’ right is concerned, it has already been there since the Act of 1956, but in Self-Acquired Property of her Father dying intestate.
2. In 2005 an Amendment Act came into force (Act 39 of 2005).
An amendment was made in Section 6 which defines the daughter as also the co-parcener, but to avail this right the father must have been alive on 9th September 2005. (as interpreted by Honourable Supreme Court recently)
So, the AMENDMENT OF 2005 deals with the co-parcenar properties and not at all with the Self-Acquired Property. The daughters’ right in self Acquired Properties of father has already been in the Act of 1956 and is not related with Section 6 (Amended). So as far as the right of a daughter is concerned in the SELF-ACQUIRED PROPERTY of father dying intestate, the date of death of father is insignificant, as this succession is not governed by Section 6.
Question 1
If I am wrong/incorrect anywhere please update accordingly!
TOPIC 2
Rights in Self-acquired Agricultural Lands
Here I see lots of controversial opinions. There are legal advisors saying that a daugfhter have no right in the agricultural land as it is governed by the state law and not by Hindu Succession Act. However, there are another group which advocates for the same order of succession.
Here I would like to refer Tukaram Genba Jadhav And Others vs Laxman Genba Jadhav And Another on 4 March, 1994 of Bombay High Court with the final decision:
“After going through all the decisions cited at the bar with the assistance of learned counsel for the appellant and the learned counsel who appeared as Amicus Curiae to assist the Court, I have reached the conclusion that there is no real conflict between the various decisions of the High Courts in the country. It may be stated in the passing that our Court has decided hundreds and thousands of matters during all these years on the footing that the Hindu Succession Act, 1956 is applicable to agricultural lands save and except to the extent provided in Section 4(2) of the Act. I am happy to conclude that after due scrutiny of all the relevant case-law on the subject, the conclusion of the Court is the same. In my opinion, there is no merit in the appeal. The appeal fails.”
(The detailed judgement can be read at https://indiankanoon.org/doc/292295/)
Section 4(2) of Hindu Succession Act provides the over-riding clauses of this Act.
For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.
Question 2
Can you please elaborate the terms and conditions evolving:
- PREVENTION OF FRAGMENTATION OF AGRICULTURAL HOLDINGS
- FIXATION OF CEILINGS
- DEVOLUTION OF TENANCY RIGHTS IN RESPECT OF SUCH HOLDINGS
Question 3
If the sons want to sell the agricultural land for the purpose of commercial/residential construction so how Section 4(2) of Hindu Succession Act is applicable there?
Question 4
Under which conditions, the succession to an agricultural land is governed by Hindu Succession Act 1956 and not by State Tenancy Laws (as in light of the above referred Bombay High Court Order)?
I am very much thankful for your valuable time, consideration and support.
Thanks.
