Property Inheritance Law: Rights of children in family’s ancestral and parents property
DEFINITION OF ANCESTRAL PROPERTY:
U.R.Virupakshaiah v. Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008
Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property.
Smt. Dipo v. Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20]
A person inheriting property from his three immediate paternal ancestors holds it in coparcenary with his sons, sons’ sons and sons’ sons’ sons’.
Further, he, as regards other relations he holds it and is entitled to hold it, as his absolute property.
Hence, the property inherited by a person from any other relation becomes his separate property
And his male issue does not take any interest therein by birth.
- N. Arunachala Mudaliar v. C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243
The definition is based upon the text of Yagnavalkya.
Whatever is acquired by the coparcener himself without detriment to the father’s estate as present from a friend or a gift at nuptials is a self acquired property.
Co-heirs do not have a share in this property, if he has heirs.
OWNERSHIP OF FATHER AND SON IN ANCESTRAL PROPERTY:
The doctrine of equal ownership of father and son in ancestral property based on the text of Yagnavalkya. Book 2. 129,
The ownership of father and son is co-equal in the acquisitions of property by the grandfather.
This has been affirmed in C. N. Arunachala Mudaliar v. C. A. Muruganatha Mudaliar And another.
WHAT IS THE RIGHT OF A SON IN HIS FATHER’S AND GRANDFATHER’S ESTATE ?
As per Mitakshara school of law, the son has a right, by birth both in his father’s and grandfather’s estate.
In the ancestral or grandfather’s property in the hands of the father:
the son has equal rights with his father.
In the self-acquired property of the father:
His rights are unequal as the father has an independent power over interest in the same. He may gift or will the property to someone else.
- N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243
The apex court observed that the son can assert this equal right with the father. However, this is only when the grandfather’s property has devolved upon his father and has consequently become ancestral property in his hands.
THE CASE OF FEMALES:
Until the Hindu Succession Act, 1956, was amended in 2005, the property rights of sons and daughters were different.
Sons had complete right over their father’s property. However, daughters enjoyed this right only until they got married, as after marriage, a daughter become part of her husband’s family.
After the amendment in 2005, every daughter (whether married or unmarried) is considered a member of her father’s HUF.She can even be appointed as ‘karta’ (who manages) of his HUF property.
Earlier, once a daughter was married, she ceased to be part of her father’s Hindu Undivided Family.
But on September 9, 2005, the Hindu Succession Act, 1956, which deal with the devolution of property among Hindus, was amended.
Now, every married and unmarried daughter is considered a member of her father’s Hindu Undivided Family and can even be appointed as ‘karta’ (who manages) of his Hindu Undivided Family property.
She has the same rights, duties, liabilities and disabilities that were earlier limited to sons.
Equal right to be coparceners:
Now, women of the family can also be a coparcener.
Right over the coparcenary property is acquired by birth by the coparceners.
Coparcenary property ancestral or self-acquired property.
Daughter can now sell her share in the coparcenary property to another party.
She can even file a suit demanding partition of the coparcenary property.
Thus, the daughter, as a coparcener, can now demand the partition of her father’s property.
A Bench comprising J. Anil R Dave and J. A.K. Goel interpreted the succession law and set aside the judgment of the Karnataka High Court in Prakash v. Phulavati. (2010)
The Court held that even if father had died prior to September 9, 2005 daughters would be entitled to equal share, when litigations over partition were pending in courts.
The apex court said that the text of the 2005 amendment itself wxplicitly provides that the right conferred on a daughter of a coparcener is on and from the commencement of the Hindu Succession (Amendment) Act, 2005.
|Father’s ancestral property||yes||yes||equal|
|Family’s ancestral property||yes||yes||equal|
|Father’s self acquired property (when father is living)||No||No||As the father can gift or will the property to someone else|
|Father’s self acquired property||yes||Yes||Equal|