Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

Daughters Born Before 2005 Have Equal Rights To Ancestral Property: SC

  1. Daughters Born Before 2005 Have Equal Rights To Ancestral Property: SC

  2. @1             The issue of succession equality and rights for women has been extremely important and perhaps controversial in recent times. However, it is very heartening to see that our Indian Courts have continued to adopt a pro-women approach in a number of legal aspects, one of the most important of which is in relation to ancestral properties.

  3. In a landmark decision, the Supreme Court of India (“SC”) upheld the right of a daughter to be entitled to an equal share as a son in an ancestral property, including daughters who were born before the Hindu Succession Act, 1956 (“HSA”) came into force. The judgement was delivered by Justice A.K. Sikri and Justice Ashok Bhushan on February 1st, 2018 in the matter of Danamma v. Amar .
    Clarifying further, the Bench added that the Hindu Succession (Amendment) Act, 2005 (“2005 HSA Amendment”) to Section 6 of the HSA makes a daughter a “coparcener” (one who shares equally in inheritance of an undivided joint family property, and since 2005 this applies equally to both sons and daughters) since birth; and this fact gives her the same rights and liabilities as a son while asserting that it is applicable in all property disputes filed before 2005 as well. The marriage of the daughter makes no difference to this position.
    @2          A Hindu Undivided Family (“HUF”) is a unique concept that exists under Hindu law. It is a body having a separate legal personality, comprising of all lineal descendants of a common ancestor and includes their wives and daughters. A ‘coparcener’ is a lineal descendant who is within four degrees from a common ancestor, and such person acquires an undivided interest in the HUF property immediately at birth. Prior to the 2005 HSA Amendment, a daughter ceased to be a coparcener in her father’s HUF upon her marriage. However, as per the amended law, whilst a married woman becomes a ‘member’ in her husband’s HUF (i.e. she has very limited rights in the husband’s HUF), she also continues to be a coparcener in her father’s HUF.

  4. @3    ,Background
    In 2002, a plea was filed in Karnataka by two sisters of the ‘Savadi family’, seeking a share in their late father Mr. Gurulingappa Savadi’s property. The trial court dismissed their plea in 2007 and held that the sisters were not entitled to any share as they were born prior to the enactment of the HSA, and therefore could not be considered as coparceners. It also rejected the alternate contention that, in any case, the sisters had acquired a share in the HUF property after the 2005 HSA Amendment. The view of the trial court was affirmed by the Karnataka High Court, leading to the appeal in the SC.

  5. The issue before the Supreme Court
    The question of law which was considered by the SC was: Whether the daughters of the propositus could be denied their share, on the ground that they were born prior to the 2005 HSA Amendment, and, therefore, cannot be treated as coparceners?An alternate question was, whether, with the passing of the 2005 HSA Amendment, the appellants would become coparcener “by birth” in their “own right in the same manner as the son” and would, therefore, be entitled to equal share as that of a son?Supreme Court’s Verdict
    Setting aside the High Court order, the SC held that a daughter's share in ancestral property could not be denied on the ground that she was born before the 2005 HSA Amendment; and the amendment was applicable to all partition suits filed before 2005 and pending when the amendment was framed.
    The bench added that the law was amended to give daughters equal status to that of a son in succession related matters. The bench added that:
    These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected.”
    The SC correctly took the view that the amendment of Section 6 of the HSA vide the 2005 HSA Amendment clinches the issue, beyond a pale of doubt, in favour of the appellants and held that:
    This amendment now confers upon the daughter of the coparcener as well the status of coparcener in her own right in the same manner as the son and gives same rights and liabilities in the coparcener properties.”

  6. What difference will this case make?
    After 16 years of the partition suit being filed, the Savadi sisters were finally granted justice. The SC’s decision crystallizes the inheritance rights of women under Hindu law, irrespective of their marital status. The 2005 HSA Amendment fundamentally altered the status of women, by making daughters equal coparceners in the same manner as the sons in the HUF property. However, it did not expressly provide for retrospective operation of law. The SC had the option of taking either a very narrow view of the law, or choosing to do what they did. They chose wisely. This decision has made it law that a daughter (whether in existence or not on the date of amendment) will be entitled to an equal share as that of a son (i.e. her brother) in her father’s property. This categorical assertion by the SC has clarified the law, leaving very little scope for misinterpretation by other courts.

  7. What next?
    For daughters wanting to claim a share in their ancestral property, they can now do so regardless of the year of their birth. Even children of a pre-deceased daughter can claim a share in HUF property to the extent it would have devolved upon their mother. However, in practice, most daughters do not claim a share in their ancestral property and relinquish it in favour of their brothers, often for little or no compensation. Societal and family pressures force women to do so, and this is unlikely to change in the medium term across India. Even awareness or knowledge about their personal wealth and the need for succession planning is very limited or non-existent, let alone awareness of such nuanced issues on family property. This reflects a very sorry and sad state of affairs in the Indian male dominated environment.
     @7          It is important to note that Section 6 of the HSA applies only to intestate succession (i.e. default succession under the law), and not to bequests of personal assets through testamentary instruments (i.e. a Will or Codicil). Families looking to bequeath their assets to specific persons should do so by way of a professionally drafted Will, which clearly lays out the manner of bequest. This helps mitigate the risks posed by the change in law and ensure that the assets do not get locked up in litigation for many years.
    Today, women are playing a pivotal role in the business world, far beyond just in their family businesses. Given the evolving nature of inheritance & succession law, they must take steps to understand their inheritance rights, and do something proactive about it. Women, we encourage each of you to think about your succession and legacy very carefully, and consider putting in place your Wills at the earliest.Legal rights of a married daughter over ancestral propertyHere are three queries related to property disputes and inheritance answered by an expert. 
     @8                  ‘What are the legal rights of a married daughter over ancestral property seven years after her parents’ death?’ - Tripti SahuThe Hindu Succession Act, 1956, was amended in 2005 to give daughters an equal share in parental property. In case of ancestral property, a daughter now has a share in it by virtue of birth, while self-acquired property is distributed as per the provisions of the will. If the father passes away without a will, she has the same rights as the son in both ancestral and self-acquired property. The marital status of the daughter is immaterial, and a married daughter has the same rights as an unmarried one. However, it is important to note that if the father died before 2005, a married daughter will not have any right over ancestral property, while the self-acquired property will be distributed as per the will. So, if your father died before 2005, you will have no right over ancestral property, but if he died after 2005, you have a legal claim over it. Moreover, the legal right of inheritance never dies, irrespective of the time elapsed. So, as a legal heir, you can file a suit in the court to enforce your right to the property even after seven years of your parents’ death. If the father gifts self-acquired property during his lifetime to an individual, the descendants who were not gifted any share in such property would not have any right over it after his death. However, according to the Registration Act, a gift deed for immovable property is required to be registered. If the gift deed is not registered, you may be able to challenge in a court of law and claim your rightful share in that property. 
     @9                                 If your mother is not willing to give any share in property to you, including the one in your father’s name, and if there is no will regarding the deceased’s property, it would devolve according to the laws of intestate succession. This means that the self-acquired property will be distributed with first preference to Class I heirs—children and wife— who get an equal share. Your mother, in the absence of a will or a valid gift deed, will not be able to stop you from getting your share. When a father (Hindu) dies without a will, the property devolves among his legal heirs, according to the laws of intestate succession. The self-acquired property is distributed with first preference to Class I heirs. If you, as children, have given a no-objection certificate (NOC) to transfer the house in your mother’s name, your right to stop her from selling it will depend on the provisions of the NOC. Assuming that the house has now been fully transferred in your mother’s name, and also assuming that the NOC stated the mother has complete right to deal with the property in any manner she likes, the children will not have any right to stop the mother from selling the property as and when she wishes. To be sure, however, consult a lawyer with a copy of the NOC. 


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