Rights of Child in Father’s Property After Divorce

Dr Ajay Kummar Pandey, Advocate Supreme Court 

As per Hindu Succession Act, children are coparceners, ones who share equally in the inheritance of an undivided property, including ancestral property. This right comes to children by birth itself. They also enjoy the right to survivorship, i.e. the right to divide the share among rest if one of the coparceners dies along with the right to sell their share of the property to anyone they want and so on. However, these rights can be denied to them under certain circumstances, including divorce.

Rights of Sons in Father’s Property

A property for the purpose of inheritance has been divided into  ancestral and self-acquired and the rights related to each of these differ. In case of  ancestral property, sons get inheritance rights by virtue of birth itself.  This property can be divided between father and son, even during the lifetime of the father.  Son is also free to sell his share in the ancestral property to any third person even before the formal partition of the property.
However, the circumstance changes completely, when it comes to  a self-acquired property, of the father. Here, the father  has a right to gift or Will the property to anyone he deems fit, and no one can raise an objection over such transfer. Thus, if the property is a self-acquired property of the father and he has gifted or willed such property to someone by his own will, without any coercion, undue influence, fraud or misrepresentation, a right cannot be claimed over the property.

Rights of Daughters in Father’s Ancestral Property

Earlier, only male members of the Hindu Undivided Family (HUF) had a right over the ancestral property. However, after the amendment made to the Hindu Succession Act, in the year 2005, a Hindu female has an equal right in ancestral property as that of a Hindu male.

The Hindu Succession (Amendment) Act, 2005 that came into effect from  9 September 2005,  has removed provisions that were discriminatory towards Hindu daughter’s inheritance rights. The Act also provides that, a married Hindu daughter has a right of residence in her father’s house if she is deserted, divorced or widowed.

Further, until recently, the rights guaranteed to daughters under the 2005 amendment were considered to be applicable only to cases where a woman’s father was alive as on 09.09.2005  (i.e. the date on which the amendment was brought into force).

This meant that women whose fathers died before 09.09.2005 were denied the coparcenary rights guaranteed by the 2005 amendment. But now it stands rectified and it is applicable retrospectively to all cases irrespective of the date of 09.09.2005. This final move has completely eliminated any discrimination between the rights of daughters and sons.

Rights of a Child in Father’s Property After Divorce 

In the background of the above, now it can be clearly said that divorce does not affect the rights of a child in the father’s ancestral property. A child may be excluded from their father’s ancestral property if there is a will that excludes them from inheriting such ancestral property.

The self-acquired property of a father is his own. He may choose to dispose  it off  or transfer it according to his discretion. A child shall not claim a share in his father’s self-acquired property as a birthright.

Generally, the self-acquired property is bequeathed to a child by their parents. In case a father dies without a will, the child can claim a share in the self-acquired property of the father. While divorce does not affect the rights of a child in the property of their father, they depend upon the father making a will.

We should also consider whether a father can gift a property to  his son . In a recent case, the Supreme Court held that a property that was gifted  by a father to his son could not be counted as an ancestral property simply because he got it from his father. The court stated that the property of the grandfather can be held as the father’s ancestral property.

There are only two conditions under which the father would get the property, one being that he inherits the property after his father dies or in case the fathers’ father had made a partition during his lifetime. However, when the father obtains the grandfather’s property by way of gift, it is not considered an ancestral property. Sons and daughters don’t have any claim on the said property gifted by the grandfather.

A gift from the father to his son is not a part of the ancestral property as the son does not inherit the property on the death of the grandfather or receive it by partition made by the grandfather during his lifetime. The grandson has no legal right on such a property because his grandfather chose to bestow a favor on his father which he could have bestowed on any other person as well.

Thus, the interest which he takes in such a property must depend upon the will of the grantor and therefore, when the son has got the property from his father as a gift, his other sons or daughters cannot claim any part in it calling it an ancestral property. He can alienate the gifted property to anyone he likes and in any way he likes. Such a property is treated as a self-acquired property, provided there is no expressed intention in the deed of the gift by the grandfather while gifting the property to his son.

The Hindu Succession Act, under Sections 24 to 28 provide for certain cases where an heir may be disqualified from inheriting the property of a person dying intestate. Of these disqualifications, one which may lead to the disqualification of the right to inherit property by a son or daughter is the provision of ‘murdered disqualified’.As per this provision, a person who commits or abets the commission of the murder shall be disqualified from inheriting any property of the person murdered. Thus, if a son or daughter is found guilty of murdering or abetting the murder of his/her father then, they shall be disqualified by law from claiming their share in his property upon succession.

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