The property has most of the time been a bone of contention among the family members. Between a father and his children, the distribution of property can cause problems if the father has to make choices and distribution is not equal. It is always advisable to get timely legal advice in property matters and place all documents in order.
A father’s right to deal with his property has to be exercised as per the provisions of law:
- Statutory laws
- Personal laws
If the father has self-acquired property, he is free to deal with it as his children have no right to claim it during his lifetime. If he dies intestate (without leaving a will behind), all children are entitled to get it as legal heirs.
However, if the property is ancestral he cannot deal with it freely as per his wish as all his children have a share in that property and his sons can claim partition of the same.
What is self-acquired property?
A property acquired by a person:
- Purchased with own resources
- As a gift
- Through a testamentary document, e.g. will
- Received as a legal heir – i.e. share of ancestral property received after partition or share of any other property acquired as a legal heir.
- When a Hindu dies intestate, his property devolves as per Section 8 of the Hindu Succession Act, and such property which comes in the hands of a legal heir becomes his self acquired property.
Distribution of self-acquired property of a father:
- A father is within his rights to give the self-acquired -property to his one son to the exclusion of other children.
- During his lifetime, his children have no right to claim it. He can pass the same to his one son by gift or by will.
- However, if another son has contributed towards the purchase of self-acquired property of the father and he can prove his contribution, he has a right in the said property. Then in such a situation, a father cannot pass the self-acquired property to one son excluding the son who has contributed.
What is the ancestral property?
- A property which has passed on undivided up to four generations of male lineage is called ancestral property. The property should be four generations old. A person inherits the property as a descendant.
- The property inherited from father, grandfather or great grandfather becomes ancestral property.
- The property inherited from mother, uncle, grandmother or any other relative is not ancestral property.
- The property received as a gift or through a will is not ancestral.
Distribution of ancestral property of a father:
- In an ancestral property, all the sons have a right by birth and therefore, the father cannot give the ancestral property to one son to the exclusion of others. After amendment of 2005 in the Hindu Succession Act, even daughters are coparceners and have a right in the ancestral property.
- A father cannot freely give the ancestral property to one son. In Hindu law, the ancestral property can be gifted only under certain situations like distress or for pious reasons. Otherwise, the ancestral property cannot be given away to one child to the exclusion of all others.
For Muslim and Christians, there is no concept of ancestral property. The property can be given to one son as per the limit permitted under personal law for Muslims.
For Christians, the property is considered as self-acquired despite mode of acquisition and rights are governed as per the Indian Succession Act, 1925.