Succession
Nishant Jojhra
(Querist) 19 May 2012
This query is : Resolved
Can a son claim share in his father's property(Both self acquired and ancestral) during his lifetime?
Need some judgments on this..
SAINATH DEVALLA
(Expert) 19 May 2012
You have clubbed both self acquired and anscestral.
1.Self acquired No
2.Ancestral Yes.
Judgements go to indiakanoon.com
Adv.R.P.Chugh
(Expert) 19 May 2012
No judgments are required on this. Partition can be sought by any coparcenor by filing a civil suit u/s 9 of the CPC r/w Partition Act, 1893 but only as regards ancestral properties.
Guest
(Expert) 19 May 2012
Dear Querist,
The right to claim his father's self acquired property accrues to the son only after the father has died intestate. In the event of the father dying intestate, the son would succeed to his property in equal terms with all other class 1 heirs.
For ancestral property, the son being a coparcenor has a birth right in it, which can be claimed by filing a partition suit after the death of the father.
You don't need any judgement when the law is unambiguous and speaks for itself.
Regards,
Ashish Davessar
Adv Jaydeep A Tanna
(Expert) 20 May 2012
it depends on a few basic questions: 1. whether your father is alive, 2. wheher the property is self acquired 3. if answer for question (2)is yes, and (1) is no, then whether the father has made a "Valid" will, disowning you.
if the property of the father is ancestral you have every right to claim the same by filing a civil suit. but if the property is father's own and he made a will against you before his death, or if he is alive, you can't claim it. but if your father is not alive, and he has not made any valid will during his lifetime, you can claim equal rights in the property as against all his legal heirs.
even if there is a will and father has already deceased, to prove the validity of a will, one has to produce atleast 1 witness who was present at the time of making the will. in that case, you can challenge the validity of the will on different grounds, like, it was made by the way of fraud, coercion, undue influence, mistake or misrepresentation.... etc.
Son always have an equal property, along with father in the ancestral property. Son have a coparcenar's right over the ancestral property. There is no question of the father disowning you. As far as the self-acquired property of your father is concerned, it is open to him to apportion that property among the sons, as per his intention, and he may choose not to give any portion of this self acquired property
Adv Jaydeep A Tanna
(Expert) 20 May 2012
it depends on a few basic questions: 1. whether your father is alive, 2. wheher the property is self acquired 3. if answer for question (2)is yes, and (1) is no, then whether the father has made a "Valid" will, disowning you.
if the property of the father is ancestral you have every right to claim the same by filing a civil suit. but if the property is father's own and he made a will against you before his death, or if he is alive, you can't claim it. but if your father is not alive, and he has not made any valid will during his lifetime, you can claim equal rights in the property as against all his legal heirs.
even if there is a will and father has already deceased, to prove the validity of a will, one has to produce atleast 1 witness who was present at the time of making the will. in that case, you can challenge the validity of the will on different grounds, like, it was made by the way of fraud, coercion, undue influence, mistake or misrepresentation.... etc.
Son always have an equal property, along with father in the ancestral property. Son have a coparcenar's right over the ancestral property. There is no question of the father disowning you. As far as the self-acquired property of your father is concerned, it is open to him to apportion that property among the sons, as per his intention, and he may choose not to give any portion of this self acquired property
Gurupad
v.
Hirabai
26
is without a shade of doubt the most important case as regardthe concept of notional partition and section 6 of the Hindu Succession Act go. The areaof law was explored before this in much detail by the Bombay High Court in twocontradictory decisions before the present case, those being
Shriramabai
v.
Kalgonda
27
and
Rangubai Lalji
v.
Laxman Lalji
28
.
In this case, the widow of a mitaksharacoparcenor was given only a marginal share in the property and the two shares that oughtto have been clubbed were not. In the latter case, the learned judge felt that the former case was not fully argued and was incorrectly decided and that on a true view of law, thewidow’s share must be ascertained by adding the share to which she is entitled at anotional partition during her husband’s lifetime and the share which she would get in her husband’s interest upon his death. An interesting point here is that both cases wereadjudged by the same judge, Justice Patel. The view of the latter court would be upheld inthe present case. It held that whether a partition had actually taken place between the plaintiff’s husband and her sons was besides the point for the purpose of Explanation 1.That would compel the assumption of a fiction that in fact a partition of the property hadtaken place, the point of time of the partition being the one immediately before the deathof the person in whose property the heirs claim a share.
The second case is that of-
Raghunath v . Rikhiya 32
where the Patna High court heldthat where there were three brothers and one of them died, and his wife subsequently took his 1/3 rd share by virtue of the Hindu Women’s Right to Property Act and thereafter, thesecond brother died without any heirs, his share would devolve by survivorship upon thethird brother and the wife of the first brother would not be entitled to a share in the share of the second brother
Section 8 of the Hindu Succession Act deals with the order in which the property of aHindu male who dies intestate shall devolve upon his relatives. It deals with who all areentitled to claim the property first and who all can claim it after that. It must be noted atthis point that a son, as mentioned in the schedule, or a son’s son, or a son’s son’s son,has to be a legitimate son
Shonee Kapoor
(Expert) 20 May 2012
Agreed with expert opinion, nothing left to be added.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
