In a recent query, you said that “if a father died without a Will before 5 September 2005, the law of succession as it stood on the date of his demise will be applicable. 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. Your sisters will not become coparceners and only you and your father will be considered coparceners.” Will the same consideration be given if the property belongs to a widowed mother, and if the property was an acquired property and not an ancestral one.
—Chan Thanawalla
The 2005 amendment to Section 6 of the Hindu Succession Act (HSA) applies only to a Hindu Undivided Family (HUF) that is governed by the Mitakshara school of Hindu law and to property held by such an HUF. This has no bearing on self-acquired property, i.e., property that has been acquired by a person through his own funds or through gifts or bequests as there has been no change in the law which relates to such property. Therefore, in the case of a Hindu male dying intestate (i.e. without making a Will), his daughter would be entitled to inherit his self-acquired property as a class 1 heir, equal to that of a son.
With regard to HUF property, prior to the 2005 amendment in Section 6 of the HSA, under the Mitakshara school of Hindu law, daughters albeit members, were not coparceners (and hence were not entitled to demand partition). Her inheritance to HUF property devolved upon her from the share which her father would have had in the HUF property at the time of his death as a class 1 heir along with the other heirs specified in class I or a male relative specified in that class who claims through such female relative. However, since she was not considered to be a coparcener, she could not demand partition and was not entitled to a separate share of her own as a son was.
However post the amendment, such discrimination has been removed and a daughter of a coparcener shall, (i) by birth become a coparcener in the same manner as a son, (ii) have the same rights in the coparcenary property as she would have had if she had been a son, (iii) be subject to the same liabilities in respect of the coparcenary property as that of a son (iv) be entitled to demand a partition of the HUF. (However the amendment shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.)
The Supreme Court in the case of Prakash & Ors Vs. Phulavati & Ors, held that the amendment to the HSA is prospective and is applicable to a living daughter of a living coparcener as on 9 September 2005 (i.e. at the commencement of the Amendment Act), irrespective of when such daughter was born provided that any disposition or alienation including partitions which may have taken place before 20 December 2004 as per law applicable prior to the said date will remain unaffected. Therefore for a daughter to be considered to be a coparcener, she and her father should both have been alive as of 9 September 2005.
With respect to the property of a widowed mother also, there has been no change in the law. In the absence of a Will, the self-acquired or inherited property of a Hindu female (widow) dying intestate would devolve first upon the heirs mentioned in the first entry of sub-section 1 of Section 15. This would include sons and daughters (including the children of any pre-deceased son or daughter) in equal proportions.
My father-in-law wants to gift a 1,200 sq. ft. site to my wife. I requested to execute the gift deed jointly on our names but the lawyer said a gift deed cannot be executed on two persons. Is it true?
—Jagadish
There is usually no restriction on gifting a single plot to the joint names of two persons. However, this is subject to any specific conditions applicable to the land which is held by your father-in-law (and the documents would have to be examined for this purpose).
The gift must be effected in the manner set out in Sections 122 and 123 of The Transfer of Property Act, 1882. It must be effected by a registered instrument (gift deed) signed by or on behalf of the donors, and attested by at least two witnesses. The gift would have to be accepted by you and your wife (as donees) during the lifetime of your father-in-law and duly stamped.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
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