Sons and Daughters Rights in Father's Property

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Learn the intricacies of property rights to daughter and son in a father's property. Find expert property lawyers on LawRato to know your rights to father's self-acquired assets and ancestral property. Children as coparceners (a person who shares equally in the inheritance of an undivided property) have certain rights over their father's property, including the right in the ancestral property by birth a right to survivorship, i.e. the right to divide the share among the rest if one of the coparceners dies along with the right to sell their share of the property to anyone they want and so on. These rights bestowed upon coparceners by Indian succession law can vary depending on circumstances and occasionally even lead to a denial of property shares. The following sections discussed in the article elaborate on the specifics of the father's property rights to his daughter and son.
 

What is the law governing the distribution of a father's property in India?

In India, the distribution of a father's property after his death is governed by the Hindu Succession Act, 1956. This law applies to Hindus, Buddhists, Jains, and Sikhs, and governs the distribution of property in case of intestate succession, i.e., when the father dies without leaving a will. Under the Hindu Succession Act, the property of a Hindu father is first distributed equally among his Class I heirs, which includes his widow, children (including daughters), and mother. If the father's mother is not alive, then the property will be distributed equally among his widow and children. If any of the Class I heirs are not alive or have predeceased the father, then their share will go to their own legal heirs. For example, if a daughter has predeceased the father, then her children will be entitled to her share of the property. If there are no Class I heirs, then the property will pass on to Class II heirs, which includes the father's father, brothers, and sisters. If any of the Class II heirs are not alive or have predeceased the father, then their share will go to their own legal heirs. It's important to note that if the father has left a Will, then the distribution of his property will be governed by the terms of the Will.

Legal Rights of a Son in Father's Property

Under the Hindu Succession Law, property for the purpose of inheritance has been divided into ancestral and self-acquired property and the rights related to each of these also differ. Rights of a son if the property is ancestral When the property is ancestral, inheritance rights to sons accrue by the time of birth as a son is a joint owner of ancestral property. A son also holds a right to file a partition suit for his rightful share in the property and can ask for the same during the lifetime of his father. Moreover, he can sell his share in the ancestral property to any third person even before the formal partition of the property has taken place. Rights of a son if the property is self-acquired In the case of self-acquired property, the father has a right to gift or Will the property to anyone he deems fit, and the daughter cannot raise an objection over such transfer. Thus, if the property is a self-acquired property of the father and he has gifted or willed such property to someone by his own will, without any coercion, undue influence, fraud, or misrepresentation, a right cannot be claimed over the property.
 

Legal Rights of a Daughter in Father's Ancestral Property

Earlier, only male members of the Hindu Undivided Family (HUF) had a right over the ancestral property. However, after the amendment made to the Hindu Succession Act in the year 2005, a Hindu female has an equal right in ancestral property as that of a Hindu male. By the said amendment, women were also made coparceners in the HUF setup. Whereas, self-acquired property has been defined as property purchased by an individual from his resources or through any property he acquired from his share in ancestral property. An owner of a self-acquired property has all the rights to dispose of a self-acquired property in any manner he deems fit, and the legal heirs will not be able to raise an objection. The Hindu Succession (Amendment) Act, 2005 which came into effect from 9th September 2005 has removed provisions that were discriminatory toward Hindu daughters' inheritance rights and has given equal coparcenary rights to them as sons. Can a married daughter claim father's property? A married Hindu daughter also has a right of residence in her father's house if she is deserted, divorced, or widowed. Further, until recently, the rights guaranteed to daughters under the 2005 amendment were considered to be applicable only to cases where a woman's father was alive as on 09.09.2005 (i.e. the date on which the amendment was brought into force). This meant that women whose fathers died before 09.09.2005 were denied the coparcenary rights guaranteed by the 2005 amendment. After various differing opinions within the Indian judiciary on the issue of retrospective applicability of the amendment, the Supreme Court recently in August 2020 brought finality to the matter and made the amendment applicable retrospectively to all cases irrespective of the date of 09.09.2005. This final move has completely eliminated any discrimination between the rights of daughters and sons to their father's property under the Act.
 

Rights of a Child in Father's Property after Divorce in India

Divorce does not affect the rights of a child in their father's ancestral property. A child may be excluded from their father's ancestral property if there is a will that excludes them from inheriting such ancestral property. A father's self-acquired property is his sole possession, affording him the liberty to dispose of or transfer it as he sees fit. It's important to note that a child does not inherently possess a claim to their father's self-acquired property. Typically, such property is inherited through parental bequest. However, in the event of the father's demise without a will, the child may rightfully stake a claim to a portion of the self-acquired property. Importantly, the child's entitlement to the father's property in cases of divorce depends upon the existence of a will made by the father.

Can a Father Gift a Property to his Son?

In a recent case, the Supreme Court held that a property that was gifted by a father to his son could not be counted as ancestral property simply because he got it from his father. The court stated that the property of the grandfather can be held as the father's ancestral property. There are only two conditions under which the father would get the property, one being that he inherits the property after his father dies or in case the father's father had made a partition during his lifetime. However, when the father obtains the grandfather's property by way of a gift, it is not considered ancestral property. Sons and daughters don't have any claim on the said property gifted by the grandfather. A gift from the father to his son is not a part of the ancestral property as the son does not inherit the property on the death of the grandfather or receive it by a partition made by the grandfather during his lifetime. The grandson has no legal right on such a property because his grandfather chose to bestow a favour on his father that he could have bestowed on any other person as well. Thus, the interest which he takes in such property must depend upon the will of the grantor, and therefore, when the son has got the property from his father as a gift, his other sons or daughters cannot claim any part in it calling it an ancestral property. He can alienate the gifted property to anyone he likes and in any way he likes. Such a property is treated as a self-acquired property, provided there is no expressed intention in the deed of the gift by the grandfather while gifting the property to his son.

Upon the death of the father, to whom does the property pass?

The answer to this question depends on various factors such as the religion of the father, whether he left a will and the state in which the property is located.

• If the father is a Hindu, the Hindu Succession Act, 1956 governs the transfer of his property after his death. Under this law, the property of the father would pass to his legal heirs, which include his wife, children, and their descendants.

• If the father is a Muslim, the Muslim Personal Law governs the transfer of his property. Under this law, the property of the father would be divided among his legal heirs as per the rules of Sharia.

• If the father is a Christian, the Indian Succession Act, 1925, will govern the transfer of property after his death. Under this law, the property of the father would be distributed among his legal heirs, which include his wife, children, and their descendants.

• If the father is a Parsi, the Parsi Succession Act, 1925, will govern the transfer of property after his death. Under this law, the property of the father would be distributed among his legal heirs, which include his wife, children, and their descendants. The distribution of property would be based on the Parsi custom of intestate succession.

If the father has made a will, the property would be distributed as per the terms of the will. If the father did not make a will, the property would be distributed among his legal heirs as per the applicable laws. It's important to note that the laws relating to property inheritance can vary from state to state in India, so it's advisable to consult a local lawyer for specific advice.
 

What is the procedure for the distribution of Father's Property among the heirs?

The procedure for family property division in India depends on the specific circumstances and the applicable laws. Here are the general procedures for family property division in India:

1. Identification of ancestral and self-acquired property: The first step is to identify the ancestral property and self-acquired property of the family. Ancestral property refers to property that has been passed down through generations without any division among the family members. Self-acquired property refers to property that has been acquired by a family member through their own efforts or by inheritance or gift.

2. Determine that who are legal heirs of father: The next step is to determine the legal heirs of the family. The legal heirs include the surviving spouse, children, and parents of the deceased family member, as well as any other family members who may have a legal claim to the property.

3. Filing of partition suit: If the family members cannot agree on the division of property, a partition suit may be filed in court. The partition suit seeks the division of the property among the legal heirs. The suit may be filed in a civil court or a revenue court, depending on the type of property and the state laws.

4. Valuation of the property: The court may order a valuation of the property to determine its fair market value.

5. Division of the property: The court may divide the property among the legal heirs based on their share of the property. The division may be done by physical division of the property or by awarding a monetary compensation to the legal heirs who do not receive physical possession of the property.

6. Registration of property: Once the division of property is complete, the legal heirs must register the property in their names.

It is important to note that the procedure for family property division may vary depending on the specific circumstances and the applicable laws. It is advisable to consult a lawyer for guidance on the specific procedures and laws applicable to a particular case. Before you start executing your plan, be sure that it is right. You might have planned it well, however, there can be certain aspect that you might have wished. Vist the following and get to know that how can LawRato: Resolve a property dispute case in India | Lawrato

Certain Disqualifications to Rights of Inheritance under the Hindu Succession Act, 1956

The Hindu Succession Act under Sections 24 to 28 provides for certain cases where an heir may be disqualified from inheriting the property of a person dying intestate. Of these disqualifications, one which may lead to the disqualification of the right to inherit property by a son or daughter is the provision of & lsquo murdered disqualified'. As per this provision, a person who commits or abets the commission of the murder shall be disqualified from inheriting any property of the person murdered. Thus, if a son or daughter is found guilty of murdering or abetting the murder of his/her father then, they shall be disqualified by law from claiming their share in his property upon succession.
 

Landmark Supreme Court Judgment pertaining to Daughter's Right in Ancestral Property

Vineeta Sharma vs Rakesh Sharma (2020) 9 SCC 1 Recently, the Supreme Court of India, while aiming to ensure the right to equality, held in this case that a daughter coparcener would have equal HUF (Hindu Undivided Family) Properties or equal right to family property by birth, irrespective of whether the father i.e. a coparcener passed away before the 9th September 2005 (which is the day when the Parliament recognized daughter's right to equal coparcenary as a son by amending the Hindu Succession Act 1956). It was stated by the Three-Judge Bench that the right of the daughter was one bestowed by her birth and would remain unaffected by the date of her father's death. This judgment settled the confusion and issue pertaining to the applicability and scope of Section 6 of the Hindu Succession Act 1956 as amended by the Hindu Succession (Amendment) Act 2005. The impact of Vineeta Sharma v. Rakesh Sharma While this landmark judgment has cleared up existing doubts and confusion and significantly improved women's rights under the law, its application, in reality, is restricted. The decision applies only to HUF properties and personal and self-acquired properties remain unaffected. These assets are passed on through will or succession law. Personal wealth, including ownership rights in family businesses, are usually held by the patriarchs. Existing business families may still continue to hold wealth through HUFs, but the scale of such holdings has considerably reduced. Few business families continue to establish new HUFs and the majority of the existing HUFs have ceased to operate. Therefore, this judgment may not necessarily transfer real wealth to the daughters.

How can a Lawyer help you in a case relating to family Property?

Sometimes the law and the legal framework can get confusing and difficult to understand, especially when the issue is related to family property and rights of inheritance. In such a scenario, one may not realize how to determine the legal issue, the area to which the issue relates, whether the issue requires going to court, and, how the court procedure works. Seeing a property lawyer and getting some legal advice can enable you to comprehend your choices and can give you the certainty to enable you to determine your legal recourse. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert property lawyers. An experienced attorney can give you expert advice on how to handle your property matter owing to his/her years of experience in handling such cases. A is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney you can ensure avoiding delay and can get your share in the property as quickly as possible.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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