Children’s Entitlement in Father’s Property

Introduction

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As coparceners sons and daughters have numerous birthrights as well as the right to survivorship in the ancestral property. Owing to the Right to Survivorship if a coparcener passes away the property is partitioned amongst the other surviving coparceners. The coparceners jointly own the property and if any of the coparceners want that the property is partitioned their claim is validated once a partition suit is filed.

Separate property can be acquired by a coparcener and simultaneously they have the right of alienation of his/her share in the ancestral property as well as self-acquired property to a third-party. Father’s gifting of property to his son won’t be regarded as ancestral property rather it would be viewed as gifting of self-acquired property. The son, in turn, may alienate his share to a third-party.

Can a father gift a property to his son?

In one of the landmark Supreme Court cases, it was upheld that the father’s gifting of property to his son is not to be viewed as gifting of the ancestral property since the son got the property from his father as a gift. The ruling of the court was that the grandfather's property is viewed as ancestral property vested in the father.

There are two preconditions for the vesting of ancestral property to the father. One is through inheritance whereby the father can stake a claim or inherits ancestral property once the father dies or receives it by way of partition initiated by none other than the grandfather himself while he was alive. Nonetheless, if the father inherits the property as a gift from the grandfather then it's not to be regarded as ancestral property.

Sons and daughters don’t have any claim on property gifted by grandfather

Ancestral property cannot be gifted by the father to his son as in the son’s case the property is not an inheritance on the grandfather’s death nor is the property partitioned by the grandfather while he was alive that the grandson could stake a claim. The grandson absolutely hasn’t got any legal right on the ancestral property as his grandfather opted to will the property to his son rather than any other person.

Therefore, the son’s extent of interest on the property is related to and dependent on the grantor’s will and hence, in case of property gifted by father to his son, the grandsons have no legal entitlement to stake a claim on a property that is not ancestral property at all. The father’s alienation of property gifted by his father or his son’s grandfather to anyone he wishes has legal validation or is permissible under the law. These types of properties are essentially self-acquired properties unless there is any explicit intention in the grandfather’s gift deed during the gifting of the property to his male offspring. Property rights of sons and daughters can only be established on properties devolving upon their father and are viewed as ancestral property from the father’s perspective.

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