Sons and Daughters Rights in Father's Property

हिंदी में पढ़ें
September 22, 2021
By Advocate Chikirsha Mohanty



Children as coparceners (a person who shares equally in the inheritance of an undivided property) have certain rights over their father’s property including right in ancestral property by birth; a right to survivorship i.e. the right to divide the share among 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 have been provided to the coparceners under the Indian succession law and may vary based on different circumstances, sometimes even resulting in a denial of a share in the property. The circumstances have been dealt with below in detail in relation to a son’s and a daughter’s right to inherit the father’s property.

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Rights of Sons in Father’s Property

Under the Hindu Succession Law, a property for the purpose of inheritance has been divided into an ancestral and self-acquired property and the rights related to each of these also differ.

Rights of sons if the property is ancestral
When the property is ancestral,inheritance rights to sons accrues 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 sons if the property is self-acquired
In case of a 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.

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Rights of Daughters 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 an ancestral property as that of a Hindu male. By the said amendment, women were also made coparceners in the HUF setup.

Whereas, a self-acquired property has been defined as a property purchased by an individual from his own resources or through any property he acquired from his share in an 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 that came into effect from 9thSeptember 2005 has removed provisions that were discriminatory towards Hindu daughter’s inheritance rights and has given equal coparcenary rights to them as sons. In addition to this, 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 on the matter and made the amendment applicable retrospectively to all cases irrespective to 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.

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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. The self-acquired property of a father is his own. He may choose to dispose of it or transfer it according to his discretion. A child shall not claim a share in his father’s self-acquired property as a birthright. Generally, the self-acquired property is bequeathed to a child by their parents. In case a father dies without a will, the child can claim a share in the self-acquired property of the father. While divorce does not affect the rights of a child in the property of their father, they depend upon the father making a will.



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 an 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 fathers’ father had made a partition during his lifetime. However, when the father obtains the grandfather’s property by way of gift, it is not considered an 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 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 favor on his father which he could have bestowed on any other person as well.

Thus, the interest which he takes in such a 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.

Consult:Top Property Lawyers in India



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

The Hindu Succession Act under Sections 24 to 28 provide 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 ‘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 Judgment pertaining to Daughter's Right in HUF Property

Vineeta Sharma vs Rakesh Sharma (2020) 9 SCC 1

Recently, the Supreme Court of India, while aiming to ensure 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 recognised daughter's right to equal coparcenary as 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 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 Hindu Succession (Amendment) Act 2005.

The impact of Vineeta Sharma v. Rakesh Sharma

While this landmark judgment has cleared up existing doubts and confusions 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 with 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?

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 to, 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'sFree Legal Adviceservice to get free advice on your case from expert propertylawyers.

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. Ais 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.



 

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