Since this is an area of profound concern these days, and I’ve been
facing endless queries on this, here is a basic & overly simplistic
layman’s view on the law as it was before 2005 and after it vis-a-vis
daughter’s right in joint family/coparcenary/ancestral properties among
Hindus in India.
Concept of Joint Family in a nutshell
We all are aware of the concept of a Joint Family – wherein people
related by blood/marriage descending from a common ancestor form a unit,
live, work, worship together. This includes all sorts of people,
sons/daughters (married, widowed or otherwise), mother, widows of sons
etc. All these people have right to maintenance out of joint family
properties and assets.
The Coparcenary
Within this group there is a narrower group called the coparcenaory,
with it’s constituents being referred to as the coparcenars have birth
rights (ownership) in the joint family/ancestral properties, which they
can get culled out anytime by a partition, they have the right to
sell/gift/will away their share of the property, they also have the
power to assail any wrongful transfer of property made by Karta (Karta,
for those who arrived late is the eldest lineal member of the family,
entrusted with task of managing the property, Karta has the power to
even alienate the whole of property in certain circumstantial
compulsions).
BEFORE 2005
Now before 2005 only son, son’s son, son’s son’s son were coparcenars,
with the daughters only having a right to reside in the property and get
their marriage expenses defrayed out of the same. A son would acquire
proportionate ownership in the property moment of it’s conception, but
not the girls.
POST 2005
Post 2005 – now a daughter also would acquire ownership rights on the
property from the time of her conception (provided of course she is born
alive). She has the same rights of partition and power to deal with the
property as she pleases, this right extends to seeking a partition and
sale of the family home as well. Hence there is a complete parity in
terms of rights. However it would be profitable to remind ourselves
that these rights extend to only ancestral properties (or joint family
properties – are properties which people inherit from their paternal
ancestors/property through into common hotch potch/property acquired by
joint family efforts/accretions etc) and not separate properties (which
include property earned by gift/will/acquired through purchase from own
funds/acquisitions from own skill etc.)
But there is a rider - The right to get your equivalent share of the
property can be exercised only in cases where there has been no formal
partition (partition either through court final decree or through a
registered partition deed) before 20.12.2004. In case a partition has
already been finalized before the said date, the right collapses.
HOW TO ASSERT YOUR RIGHT ? FILING A SUIT FOR PARTITION
The Daughters (married, widowed or unmarried) now can approach the
civil court for seeking a partition from their brothers/family/father
etc. Their right is equal. Once acquired a lady is free to deal with the
property the way she likes and it becomes her absolute property and her
children have no right during her lifetime.
A Daughter can file a suit for partition, on which certain court fees
is payable. This court fee depends on the value of her share in the
property and has to be calculated as per court fee chart.
Lawyersclub
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