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Children’s Entitlement in Father’s Property

Introduction?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 grandfatherAncestral 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. Click here to connect to Vidhikarya’s registered expert property lawyers for further legal advice in this regard. 

Posted By

Avik Chakravorty

10 hours ago

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Can a Daughter Claim on Ancestral Property

Post amendment in 2005, daughters, regardless of whether unmarried or married, is regarded as a member of HUF belonging to her father and can be the designated ‘karta’ managing his HUF property.) Up until the amendment of the Hindu Succession Act, 1956, in 2005, sons and daughters did not have equal property rights. Although sons had absolute right over the property of their father's, only unmarried daughters were able to avail of this right. Once daughters get married, traditionally they are not a part of their father’s family anymore, rather they are a part of their husband’s household. According to Hindu law, a Hindu Undivided Family (HUF) is essentially a group of persons, all direct descendants of an ancestor in common. People of Hindu, Jain, Sikh or Buddhist faith can form a HUF.Daughters' rights in the Hindu Succession Act, 2005Previously, once daughters got married, she wasn’t a part of the HUF of her father. According to the vast majority of people, women were discriminated against and treated unfairly on the issue of property rights. However on September 9, 2005, the Hindu Succession Act, 1956, governing how the HUF property ought to devolve amongst Hindus was amended. Based on the Hindu Succession Amendment Act, 2005, both married and unmarried daughters, were regarded members of the HUF of their fathers’ and could even be designated as 'Karta' managing his HUF property. According to the amendment, daughters are granted equal rights, duties, liabilities, and disabilities that previously only sons had the right.  Previously, based on the ruling, the amendment granted benefits to a daughter on condition that her father ought to expire after September 9, 2005, and the daughter can be a co-sharer only if both the father and the daughter were living on September 9, 2005.Nonetheless, on February 2, 2018, the Supreme Court’s general ruling was that a daughter whether alive or dead on the amendment date will have the right to her share in her father’s property, and in the process, her children also would be able to claim the exact same right.Equal right to be coparcenersA coparcenary is comprised of the oldest member and a family of three generations. Previously a coparcenary used to be comprised of a son, a father, a grandfather, and a great grandfather in ascending order. These days, women too, are eligible to be labeled as a coparcener. According to the coparcenary, the coparceners have acquired the birthright over the coparcenary property. The interest and share of the coparceners in the property fluctuate as members die and new members are born.A coparcenary property can be both an ancestral and self-acquired property. Although in regards to ancestral property, all coparceners have an equal share in the coparcenary property. In regards to self-acquired property, on the other hand, managing the property would be according to a person’s own free will. A coparcener can sell his or her share to a third party. Nonetheless, a sale of the type is conditional in the sense that the other members of the coparcenary have the Right of Pre-emption. The other members, nonetheless, reserve the “right of first refusal” in regards to the property, to prevent an outsider’s entry.Only a coparcener, just not any member can file a lawsuit demanding that the coparcenary property be partitioned. Therefore, the daughter, being a coparcener, can demand that the property of her father be partitioned. Click here to connect to Vidhikarya’s registered expert property lawyers for further legal advice in this regard.

Posted By

Avik Chakravorty

2 weeks ago

Go to Blog
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