Son's right to ancestral property during the lifetime of the father
It is not clear from your end ,whether son has a right in ancestral property during the lifetime of father, in this matter sc Judgment mar 2016 Uttam vs Saubhag will it effect to claim my share now,. Our property is undivided since great grandfather's time. In the year 1983 when my grandfather was expired then only father with all his brothers name was transferred in khatauny .
The property inherited by a Hindu from his father, father's father or father's father's father is an ancestral property. If a Hindu inherits the property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcener with the father as regards the property. A coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. A coparcener has an interest by birth in the joint family property, though until partition has taken place, this is an unpredictable and fluctuating interest which may be enlarged by deaths and diminished by births in the family. Every coparcener has the right to be in joint possession and enjoyment of joint family property.
Under Hindu Mitakshara law, a son has a birth right in the ancestral property, i.e., he has right in the ancestral property during the lifetime of his father. The share that a son (or daughter) would receive would be governed by the Hindu Succession (Amendment) Act, 2005.
In the case, Uttam v. Saubhag, the Supreme Court had given the judgement keeping in mind the particular facts of that case. In that case, the plaintiff was not considered to be a coparcener since he was born after the property in question had ceased to be an ancestral property. Therefore, this judgement does not affect a son’s right in the ancestral property.
- Bhagirathibai V. Tanabai. [AIR 2013 Bom 99]
- Uttam v. Saubhag [http://judis.nic.in/supremecourt/imgs1.aspx?filename=43465]
- Paras, D., 2016. Modern Hindu Law.
- The Hindu Succession Act, 1956 [https://indiankanoon.org/doc/685111/]
Follow-up Question: Dear firm ,
Pl tell as per mitakshara law , if my grandfather's died intestate .,after that my father and all his brothers names were entered in revenue records/khatauny. There was no legally partition was ever done and land still undivided.
I was born before my grandfather's death I Being a legal heir whether can I get my share during lifetime of my father. pl tell who is class 1 heir as of now. whether my son also have a right who is now 18 yrs of age.
Under Mitakshara law, the coparcenary consists of 4 generations. Since you as well as your son fall within the first four surviving generations, both of you are part of the coparcenary. Moreover, as there has been no partition and the land is still undivided, the ownership of the property is joint and the enjoyment of the property by the coparceners is together with all the joint family members. At the time of partition, all coparceners, whether major or minor, are entitled to get a share at the time of partition. A coparcener, who is major and of sound mind, can, at any time, demand a partition and specification of his share. The person from whom he can demand partition, is the Karta of the coparcenary. It is one of his inherent rights, being the owner of the property collectively with the other coparceners, and what he does by demanding a partition is simply asking for a demarcation of what exactly belongs to him exclusively and for a right to deal with it as a separate person. He does not have to give any reason, explanation or justification for seeking partition. Therefore, you and your son can definitely get your share during the lifetime of your father, if you seek for partition, or can enjoy it as a joint property holding equal rights. The question of Class- I heirs does not apply in this case, since it is a coparcenary property. Class 1 heirs would be considered in case of inheriting your grandfather’s separate properties and not ancestral properties. A list of class-I heirs can be found in the Schedule to The Hindu Succession Act, 1956. As per Section 8 of the Hindu Succession Act, 1956, Class-II heirs would not inherit any of the separate property of the till the time Class-I heirs are alive. Therefore, you would not inherit any of the property , apart from the ancestral property, till the time your father , uncles or anyone else in the Class-I is alive. Sources: The Hindu Succession Act, 1956 Sartaj Kuari v. Deoraj Kuari [(1888) ILR 10 All 272] Family Law Lectures II by Dr. Poonam Pradhan Saxena
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