RIGHT OF A SON IN HIS FATHER'S PROPERTY

 Legally disowned

Due to family altercation, Rajesh Kapoor's father Chaman Lal Kapoor decided to legally disown him from his property. Rajesh found his father's decision unwarranted and decided to take it to court. Let's find out if Rajesh is eligible to get a share in his father's property under the Hindu Succession Act, 1956.

His share in his father's self-acquired property

The Hindu Succession Act, 1956, states that any property that is acquired by a person himself, either by way of his own resources or by way of division of the ancestral property, is his self-acquired property. Similarly, a property acquired by virtue of being a legal heir, through a gift deed or 'will' etc. also comes under the category of self-acquired property. Property inherited from a deceased brother, uncle, etc. is also self-acquired property.


Contribution towards acquisition of property

"A legal heir has no right in the self-acquired property of his parents, unless the contesting legal heir can conclusively prove that he has contributed towards the acquisition of the property and is a co-owner of the property. 

The owner of the self-acquired property can deal and dispose of the self-acquired property in any manner prescribed under the Transfer of Property Act, 1882 or can bequeath the self-acquired property to anyone he wishes, by way of a will," says Khaitan and Co. Partner Sudip Mullick. This means that Rajesh cannot stake a claim in his father's self-acquired property if the son has been disinherited by the father and he may have to leave the house if his parents don't wish to live with him in their self-acquired property. But, if Rajesh's father dies intestate, i.e. without making a will, then his father's self-acquired property would be devolved amongst the legal heirs irrespective of the poor relations he shared with him.

His share in ancestral property

The Act further states that any property inherited up to four generations of male lineage, which means father, grandfather, great grandfather and great great grandfather is called ancestral property. It should have remained undivided till the fourth generation upwards, only then it qualifies as ancestral property.

Hence, a property can be termed as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. "While under the Hindu law, the head of a Hindu undivided family (HUF) has the power to manage the family assets, ancestral property cannot be sold at the sole decision of one or part owners. The consent of each stakeholder is needed to sell the undivided ancestral property as all the coparceners, including daughters, can seek partition and sale of the ancestral property," says Nitin Bhatia, a real estate expert. He adds that if a stakeholder is denied his share in the property or if a member decides to sell the property without consulting other stakeholders, a legal notice could be sent to the offending party demanding rights.

Right accrues by birth

Unlike other forms of inheritance, where inheritance opens only on the death of the owner, any right to a share in such a property accrues by birth itself. This means that Rajesh, right from his birth, gets an interest in the ancestral property equal to and independent of his father. But there is a rider: Rajesh can assert this right only if his grandfather's property has devolved upon his father and has become ancestral property in his hands. Even if Rajesh's father Chaudhri Lal decides to disown his son, he can't exclude him from inheriting the family's ancestral property.
Mode of transfer of property

"To ascertain if a property is ancestral or not, along with the relationship shared between the holders of property, the mode of transfer is equally important," says Mullick. For instance, Rajesh can't have any claim on his grandfather's self-acquired property terming it ancestral if his grandfather gave the property to his son (Chaman Lal) through a gift deed. Reason: Chaman Lal didn't receive the property by virtue of being a son but the father wanted to give him a gift which he could have given to any other person as well.

Hence, we can conclude that Rajesh may be disinherited from his father's self-acquired property, but he will have equal rights in his family's ancestral or coparcenary property of the Hindu Undivided Family.