Property share
Querist :
Anonymous
(Querist) 09 September 2011
This query is : Resolved
Dear Experts, Father “X” is having property which came to him from his father’s “Y” self earned property. Now “X:” is having two sons and the said property in hands of “X” is ancestral now. Can the father can give that entire property to his one son only by way of “WILL DEED”. Can the second son can Challenge that “WILL DEED” asking his Share?
prabhakar singh
(Expert) 09 September 2011
You say it was Y's self earned property so'Y'did not inherited it from his father,hence property in hands of 'x' is not a coparcenary but his personal property and an absolute ownership vests in him which he is free to transfer in any mode he wants in his life time or by a testamentary creation of WILL to any body of his choice who may be even a stranger to the family.Hence if 'X' gives it to only one son then others son/s can not challenge it as of right as they do not have any share in the property under reference.
ajay sethi
(Expert) 09 September 2011
yes i agree with mr prbahakar singh that X can by will bequeath entire property to one of his sons
Raj Kumar Makkad
(Expert) 09 September 2011
I have also similar views as of both the experts. If X do not settle any arrangement of the properties received by him from his father Y in his inheritance then the same shall be an ancestral in the hands of legal heirs of X otherwise it is not coparcenary as already replied.
Shastri J.K.
(Expert) 09 September 2011
the second son can be Challenge that “WILL DEED” asking his Share?
Guest
(Expert) 09 September 2011
Agree with Shri Prabhakar Singh.
Querist :
Anonymous
(Querist) 09 September 2011
Dear Prabhakar Sir and other Experts thanks for reply, BUT how can it is the personal property of "X" when it is not purchased by "X" .It is purchased by his father "Y". Hence it should be ancestral in hands of "X" and each son of "X' has the birth right on the said property. Please clear my doubt.I will be very thankful to you for clarification.
R.Ramachandran
(Expert) 09 September 2011
Dear Anonymous,
As the property was purchased by his father Y, when "X" inherits it, it is his personal property. The term personal property is used to distinguish it from "ancestral property". Personal property does not mean that it is self-acquired.
Just because the property came to "X" from "Y" does not ipso facto mean that it is "ancestral property". If the property had come to "Y" from his forefathers prior to coming into force of HSA 1956, or even if the same had come subsequently but it was clearly wished to be treated as "ancestral", the property inherited from a father will be "personal property" in the hands of the son. Such a property will not be an "ancestral property".
M/s. Y-not legal services
(Expert) 09 September 2011
Thank you for this ramachandran sir.. While i visit this query i am also thought that second son can challenge father's will.. But now am little clear my self. Thank you sir.
kuldeep kumar
(Expert) 10 September 2011
sometime personal property can be converted into joint property stock and seal of ancestoral property is placed on it.i and author will be kind if light is thorwn on my issue(self acq prp thrown into common stock)..thank
Querist :
Anonymous
(Querist) 10 September 2011
Dear Experts: R.RAMACHANDARAN,MAKKAR & PRABHAKAR SIR thanks for reply. But sir which law or supreme court judgement states that such property is personal instead of ancestral. Will you please give references of any law or judgement in support of your reply. I think it will help me and others also to have clear concept regarding such related queries.I think HSA 1956 is silent on the said issue.
Querist :
Anonymous
(Querist) 10 September 2011
Dear Experts, my Query is pending.
R.Ramachandran
(Expert) 10 September 2011
We have to answer your query which was answered. We are clear in our concept. That is why it has been answered.
Please see CIT v. Babubhai Mansukhbhai (1977) 108 ITR 417 (Guj.); CWT v. Chander Sen (1986) 161 ITR 370 : AIR 1986 SC 1753 to cite a few case laws on the subject.
Querist :
Anonymous
(Querist) 11 September 2011
Dear R.Ramachandarn Sir, Thanks for giving references. But Sir, the given reference is 25 years old and that is also between CWT v. Chander Sen whereas I want such reference/ Judgement of High Court or Supreme court which is between Family members about the said Query . Please Sir.
prabhakar singh
(Expert) 11 September 2011
In this condition once again i wish to take you back to your original Query and take my self back to original concepts how Hindu law of succession has developed,what it has been ,what it is as of now after passing the Hindu Succession Act 1956(as stood amended by Act of 2005).
The development of any concept in law takes place in several decades,if you permit me to deviate a little from the point under discussion, just for an instance,then we did not have any right to privacy till 1964, unless Our Apex Court agreed to recognize it by rule of implication under article 21 of our Constitution.
Now coming back to topic i feel that the reason of your dissatisfaction despite several unanimous answers lies its origin in the word 'ANCESTRAL '.
So let us first examine this word it self.By your own under standing,which is true in general sense but not true in its legal sense relating to succession,would be
by logic "a relation that holds between x and y if there is a chain of instances of a given relation leading from x to y. Thus the ancestral of parent of is ancestor of, since x is the ancestor of y if and only if x is a parent of…a parent of…a parent of y" . True it is in general sense of its meaning BUT NOT in its true import to the concept developed legally for the succession that too in particular group of Hindus.
A father is also our ancestor by above definition but
we can not claim his self bought properties during his life time unless he passes leaving such property to devolve on heirs recognized by law of succession (H.S.A.1956as amended by Act of2005)who will inherit it as his "successors" AND NOT as " survivors".Remember these two words until i finish the discussion.
Now i will take you to two schools of old Hindu law whose rules were prevalent as a matter of established laws of inheritance in different parts of the country so that we may be able to under stand the true legal meaning of word "ancestral property "
with whose relation a very typical concept of a "Hindu coparcenary" was developed,which is found practiced even among Hindus only by followers of a school called MITAKSHARA,the counter part school called DAYABHAG mostly prevalent around the belt of West Bengal did not recognized this
concept.
The Mitakshara school developed a concept of coparcenary enlarging the rule of succession rights even by birth which was no where,not among even Hindus following Dayabhag school.
The Mitakshara school says that if 'A' is the owner and has a son 'B'and 'B'has a son 'C' and 'C' has a son 'D'And 'D' has a son 'E'then if the property of 'A' was inherited by 'B' who if died leaving it further in hands of 'C'then 'C' gets this Ancestral property from 'B' not by inheritance but by a rule typically called"co parcenary"which curtails the exclusive right of inheritance that 'B' enjoyed as a right by birth was extended to vest in 'D' also by a rule developed and called "SURVIVOR-SHIP"WHICH RECOGNIZED THE RIGHT OF 'D'ALONG WITH 'C'ONLY BECAUSE THE PROPERTY ORIGINALLY BELONGED TO 'A'.
SUPPOSE 'B'INHERITED NOT ONLY 'A's property to name a house but also acquired by buying a bungalow from his own fund and died leaving behind 'C' and 'D' as well as
house inherited from 'A' and his self acquired bungalow.
Typically what will happen that in the house that originally belonged to 'A' 'D' has equal share along with his father 'A'by virtue of concept of coparcenary and rule of survivor-ship recognizing right by birth in grand son along with his father but just at the same time 'D' DOES NOT HAVE ANY RIGHT AT ALL IN THE BUNGALOW ACQUIRED BY'B'AND INHERITED BY 'C'AS BUNGALOW WOULD BE TREATED 'B's SELF ACQUIRED and 'C's PERSONAL PROPERTY IN WHICH 'D'WOULD BE DEEMED TO HAVE NO RIGHT.And at the same time if the bungalow of 'b" inherited by 'C',if comes in hand of'D' then 'E' again the bungalow in hands 'D' would become property of both 'D' and 'E'because of the law stated above.
APPLYING THE LAW IN YOUR CASE if the property coming from 'Y'to 'X' originally
belonged to ancestor (say even father of y)
and it is that which is in hands of 'X'
only and only then the 2 sons of 'X' can
claim a right by birth so has to claim succession of 'X'as survivor with his 2 sons who shall have equal share along with
their father 'X' 1/3rd each with a right of partition too just during life time of 'X'.
At this junction we need to remember that this law was gender biased and was applicable only to grand sons adnd not grand daughters but by amendment made in 2005 in H.S.A1956.
To conclude since you say it was 'Y'property now in hands of 'X',hence it personally inherited property of 'X',every body told you rightly that you or say 2sons of 'X' can setup no claim during life time of 'X'.
IF you say us that it was 'Y's fathers'property which came into hands of'X' from his father 'Y'then we all will say that 2 sons of 'X' right in it by birth because of the rule of survivor-ship
and coparcenary the grandson having right by birth in the "ancestral property"
Notice the change of meaning of ancestral
in common sense and one recognized here for the purposes of succession among specially followers of Mitakshara school.
Hope it washes your all confusions.
Querist :
Anonymous
(Querist) 11 September 2011
Dear Prabhakar Sir, Thanks for giving so much time for my Query and I appreciate the elaboration of your reply. There is no confusion at all. But Sir I want such reference of law/ Judgement of High Court or Supreme court which is between Family members about the said Query which support your answer . Please spare some more time for that.
Querist :
Anonymous
(Querist) 12 September 2011
Dear Experts, My query is pending.
Querist :
Anonymous
(Querist) 14 September 2011
Dear Prabhakar Sir, I am awaiting your reply.Please sir.
Querist :
Anonymous
(Querist) 20 September 2011
Dear Prabhakar/ R.Ramachandaran & others Sir, I am awaiting your reply.WHY are u silent at this stage.I have learnt that the decision of Supreme Court has been reversed by Supreme Court Itself in Yudhishtir v. Ashok Kumar AIR 1987 SC 558.
