Do i have right's on my father's self -earned and ancestrol property
Liberta S
(Querist) 05 June 2013
This query is : Resolved
Hi ,
I am from Tamil Nadu ,Hindu , i got married in 2007 and i have 1 brother who got married in 2013.My father have some property in his name.My father is alive.
1)Do i have rights on his self earned property?Do he has rights to make will on my brothers name the entire property
2)Do i have rights on ancestrol property?
3)Can i get stay order from court on my father's self earned property?......
Pls suggest on the above points......
Guest
(Expert) 05 June 2013
No right till your father is alive.
V R SHROFF
(Expert) 05 June 2013
YOUR FATHER'S SELF EARNED PROPERTY: He can deal with as he like, including WILL
Ancestral property, you have right, after his death.
Anirudh
(Expert) 05 June 2013
Which property do you call as "ancestral property". Please indicate.
malipeddi jaggarao
(Expert) 05 June 2013
Self-acquired property - as rightly said by experts, he can deal in whatever way he wishes. Neither you or your siblings are having any right during his life time. If he bequeaths Will in favour of anybody including third person, that can not be contested any of you.
Regarding ancestral property - first of all you should know what is ancestral property. If he gets the property by way of Will then also it counts as self-acquired property. If the property is devolved on him as a legal heir after the demise of the property owner (say his father), then only that property is treated as ancestral. On ancestral property also you or your siblings do not have any right during his life time. But he can not bequeath the property by making a Will to others during his life time without the consent of the legal heirs. After his demise, the property will devolve on all the legal heirs.
Anirudh
(Expert) 06 June 2013
I differ with the views of Mr. M.Jaggarao as far as the following views are concerned:
1. "If the property is devolved on him as a legal heir after the demise of the property owner (say his father), then only that property is treated as ancestral." In fact, if the property was inherited after 1956, the same will a separate property (and not ancestral property). The position will be completely different if the property had already acquired the character of an "ancestral property". If that be so, then it is not inherited, it devolves by way of survivorship.
THEREFORE IT IS UTMOST IMPERATIVE TO FIRST KNOW THE FACTS ABOUT THE PROPERTY - BEFORE JUMPING TO ANY CONCLUSION.
2. I also differ with the views of Mr. Shroff when he says : "Ancestral property, you have right, after his death."
I do not know why after death? Why not one can ask for partition during the life time of one's father - if the property is ancestral and the person demanding is a coparcener?
I do not know how Mr. Makkad agrees "with jaggarao & shroff."
Perhaps he may like to explain his reasoning.
bhagwat patil
(Expert) 06 June 2013
1)Do i have rights on his self earned property? NO Do he has rights to make will on my brothers name the entire property.YES
2)Do i have rights on ancestrol property?YES
3)Can i get stay order from court on my father's self earned property?......NO
J K Agrawal
(Expert) 06 June 2013
Thanks to all for good discussion over property law.
I appreciate views of Mr Aniruddh but I am slight different with him.
It make no difference that when the property devolve. Before 1956 or even after.
The status of inherited property changes only when actual partition takes place.
At the time of partition all the persons having right in property take share.
In result, After Partition only the inherited property becomes self acquired property.
I agree with other views of Mr Anirudh.
M V Gupta
(Expert) 06 June 2013
I agree with the views of Mr. Aniruddh as modified by Mr. Agrawal.
Anirudh
(Expert) 07 June 2013
Dear Mr. Agrawal,
The position prior to coming into force of HSA 1956 was that the property inherited by a son from his father, grandfather or great grandfather would be a 'coparcenary property' in his hands with respect to his male descendants up to three generations, who would acquire a right by birth in it and would also be entitled to enforce a partition.
However with the coming into force of the HSA 1956, the son inheriting the property from his father, grandfather or great grand father, under the HSA 1956 would take it as his exclusive or absolute property, with no right of his male descendants over it.
Therefore it cannot be said that "It makes no difference that when the property devolve, Before 1956 or even after."
On the contrary, it makes a whole lot of difference.
In case the property on my father had devolved prior to coming into force of the HSA 1956, then the property in his hands would be "Co-parcenary". If my father dies after 1956 and the property devolves on me after coming into force of HSA 1956, the property will continue to be 'coparcenary property' in my hands and it cannot be said that it is my private/separate property as I inherited it from my father.
That's why I always insist that the full details about how the property travelled from time to time is essential before one reaches a conclusion whether it is a 'co-parcenary (ancestral) property' or a private/separate property.
I think I have made myself clear.
Guest
(Expert) 07 June 2013
I endorse the views of Shri Anirudh.
J K Agrawal
(Expert) 07 June 2013
Dear Aniruddh ji
Namaste
You are very clear on issue of Hindu succession but I want to clear some points.
The Rule of survivorship never vanished. even today after recent amendment it is in force.
It may be mind blowing and tough to understand but it is our business to understand things properly.
I say in brief
Before 1956
devolvement of property was by rule of survivorship among coparceners. Females were having life interest in property up to maintenance only.
1956 to 2006
Property recognized of 2 kind- Ancestral and Self Acquired.
Devolvement of whole property was again by rule of survivorship only (as stud before 1956).
The only difference was that if class 1 female members survives then succession will be as under:-
Firstly the ancestral property of deceased will be notianally divided by rule of survivorship among coparceners (which include up to great grand son).
After such division the share of deceased becomes his self acquired property.
This share ( so became self acquired) and his self acquired property shall be devolved in heirs of Class 1 as per rule of 'Per strip per capita' devolvement. (Please note that Class 2 or others are not in picture here, It may by again mind blowing that class 2 members comes in picture only when there is no class one heir which means that there is no coparcener).
(Please refer to section 6 prior to 2006 amendment and pl go through leading SC case Heera bai v Gurupad)
After 2006 amendment
The amendment is only that 'the female members shall also be treated as copercener.'
It means that the rule of survivorship is again in force as it was before 1956. The only difference that now the list of coparceners includes female also. and the further devolvement is as per explained in Heera Bai v Gurupad.
isn't it mind blowing?
V R SHROFF
(Expert) 07 June 2013
Anirudh, his Question is
"Do i have rights on ancestrol property?"
He inquired only abt his RIGHT,
not for PARTITION.
HE ACQUIRES HIS RIGHT TO PROPERTY ONLY AFTER DEATH OF HIS FATHER. [I presume the property is only a dwelling house : Residential home cannot be partitioned without the consent of other rightful heirs / occupier]
I do not know why after death? Why not one can ask for partition during the life time of one's father - if the property is ancestral and the person demanding is a coparcener?
Anirudh
(Expert) 07 June 2013
Dear Mr. Shroff,
Before saying whether the querist is entitled for a share or not, one has to know whether what he claims as "ancestral property" is in reality "ancestral property".
Therefore my question.
In the initial answer (which is in the nature of a counter query) I did not talk anything about "Partition" as that was not the query raised by the querist.
But the reference to "Partition" came up from the answer provided by Mr. Jaggarao.
Your view that "HE ACQUIRES HIS RIGHT TO PROPERTY ONLY AFTER DEATH OF HIS FATHER" will hold good only in case of father's self-earned property. I have no difficulty in accepting the same as correct.
But unfortunately, you said that "Ancestral property, you have right, after his death." This part of your answer is not correct, as one can seek partition of ancestral property so long as one is a coparcener irrespective of the fact that the other coparcener (e.g. father) is alive.
Guest
(Expert) 07 June 2013
In most cases common people generally consider next to one generation as ancester, which is not correct in terms of ancestral property. So, it is quite necessary to know to what generaltion actually the property belongs.
Guest
(Expert) 07 June 2013
In most cases common people generally consider next to one generation as ancester, which is not correct in terms of ancestral property. So, it is quite necessary to know to what generaltion actually the property belongs.
V R SHROFF
(Expert) 07 June 2013
Anirudh,
try to dig up partition cases, when a dwelling house is concerned
[ And in most of the cases, it is the only residential home used by such joint family]
If so, court usually do not allow partition, without the consent of all other heirs.
If you have any instances or citation, when a single person goes to court, demand partition of joint dwelling house, and others object, the only way out is live with them, or wait till his dad expires!!
You may throw more light under the circumstances.
That why I say, son cannot get anything in Lifetime of his father, when second son object partition, and father also decline to partition.
I appreciate your point, but have no citation, that a single person succeed to partition of only single residential property, used by family as ancestral property. We can also think of HUF, when only oldest Hindu Male control it.
You may correct me, if any recent court decided otherwise. It's not to my knowledge, and Question remains, where other member will reside, if one member want partition of house, that cannot be parted, as it only create hardship for all other member. A very strong reason, to justify partition can be a ground, which is not present in this particular case.
I fail to understand, on what ground court will pass partition order??
And the Querist keeping Quite, not adding any clarification, seems it is just a imaginary situation. Usually ancestral properties have more numbers of legal heirs, not just 3.
prabhakar singh
(Expert) 07 June 2013
There is unnecessary controversy as well as discussion too .
To me response of Mr. Bhagwat Patil as 1)NO-YES
2)YES
3)NO
is perfect answer to the query.
Liberta S
(Querist) 12 June 2013
Thank's all.
I referred Ancestrol Property" The property which was on my Grandmother's name which was converted to my Father's name".
Guide me the way to get the property.
