Do grandchildren have a right to their grandfather’s property?

Do grandchildren have a right to their grandfather’s property

Property rights are determined as per personal and statutory laws.

Hindu Law:

Under Hindu law, before deciding the question of the right of grandchildren in the property of grandfather, it is important to know the nature of the property in the hands of the grandfather – whether ancestral or self-acquired.

Ancestral Property:

It is the property which is inherited by a person from his father, grandfather and great grandfather. The property must have passed undivided up to four generations.  Property is divided as per stripes and not as per capita, i.e. share of each generation is determined first then the successive generations divide among themselves the share of their  predecessor generation. 

Hindu law recognises the concept of coparceners. It is a small unit within a joint Hindu family and consists of male lineal descendants’ of four generations. After the amendment of 2005 in the Hindu Succession Act, 1956, daughters are also coparceners along with sons.

Grandchildren – birthright in ancestral property

In the ancestral property (coparcenary property), the coparcener has a birthright. If the grandchildren are coparceners, they have a birthright in the ancestral property of the grandfather. They have a right along with all other coparceners, and therefore, they are entitled to get their share only. They can demand partition and file a suit for declaration and partition.

After the amendment of 2005, when a Hindu having an interest in the ancestral property dies intestate, his interest will devolve as per succession rule provided in Section 8 of the 1956 Act.

Self-acquired property: It is the property which a person:

  • Purchases from his own income/resources
  • A share of property acquired as a result of partition in ancestral property
  • Receives as a gift
  • Acquires as a legal heir through a testamentary document, e.g. Will

A person has absolute right over his self-acquired property and can dispose of it off as he pleases.

Grandchildren have no birthright in the self-acquired property of the grandfather. As per Hindu Succession Act, 1956, the self-acquired property of a Hindu male dying intestate devolves by succession, among the legal heirs as follows:

  • Class I heirs
  • Class II heirs (if no one in class I)
  • Agnates (if no one in class II)
  • Cognates (if no one in agnates)

( List of all the heirs is provided in the schedule of the Act )

Read: Property rights of daughters Under Hindu Law in India

The grandfather has absolute right to deal with the self-acquired property as he desires. If the Grandfather has made a will, the property bequeathes to the person named in the will.

If the grandfather dies intestate, the property devolves as per rule of succession provide in Section 8 of 1956, Act. Grandchildren will not get any share in the self-acquired property of the grandfather as grandchildren are not in Class I heirs. The father, i.e. son of the grandfather who is Class I heir gets the share.

However, if the father had already died before the death of the grandfather, then the grandchildren become entitled to the share in the self-acquired property as children of the predeceased son as they are now included in class I heirs as children of predeceased son/daughter and they inherit equally as other class I heirs.

Muslim Law:

There is no concept of joint family property in Muslim Law. The right of inheritance opens on the death of the person, and the nearer relatives are preferred over, the remoter. If the father is alive at the time of the death of the grandfather, he will get the property and not the grandchildren.

Rights of Illegitimate Children

Rights of Illegitimate Children

No words are associated with as much contempt as the words bastard and bastardry. However, with the advent of technology and social reforms, there has been a lot of improvement in this situation. Earlier all children born out of Void and Voidable marriages under Sec 11 and 12 of the Hindu Marriage Act were illegitimate and had no property rights. However, with the Marriage Laws (Amendment) Act, 1976 amended Sec 16 of the HMU, and now, all the above-mentioned children are deemed legitimate.

JINIA KEOTIN V KUMAR SITARAM MANJHI [(2003) 1 SCC 730]

In this case the Supreme Court said, ‘Section 16 of the Act while engrafting a rule of fiction in ordaining children, though illegitimate, to be legitimate, notwithstanding the marriage was Void or Voidable, also chose to confine its application, as far as succession or inheritance by such children are concerned, to the properties of the parents only.’ Hence, such children are entitled to the self-acquired property, or the ancestral property passed to them by the parents, but not the property of the Hindu Joint Family.

S PS BALASUBRAMANYAM V. SRUTTAYAN [AIR 1992 SC 756]

The Apex Court held that if a man and a woman are living under the same roof and cohabiting for a number of years, they will be presumed to be living as husband and wife, under Sec 114 of the Indian Evidence Act, and a child born out of this relationship will be legitimate. Although, this shouldn’t be a ‘walk in and walk out’ relationship.

MUSLIM LAW

Illegitimate children have no rights to inherit from their fathers, however, under the Hanafi law, the mother and her illegitimate children have mutual rights of inheritance. They also have a claim on the property of all other relations of his or her through the mother. It also does not confer the right of maintenance on the illegitimate child, although the Hanafis do recognise the obligation to nurture the child till the age of 7 years. But such children can only seek remedy under Sec 125 of the Code of Criminal Procedure.

CHRISTIAN LAW

The Indian Succession Act covers the property rights of Christian children. The term ‘child’ in the act does not include illegitimate children, and Sec 37 of the Act precludes such children from inheriting the property of the father. However, they are granted the right to maintenance under Sec 125 of the CRPc.

The Hindu law does provide sufficient protection to these children, but other personal laws are not so elaborate on the subject. In the case of Revansidappa v Mallikarjuna&Ors, the Supreme Court expressed its sympathy for such children. Upholding the constitutional validity of Sec 16(3) of the HMA, the court held in ParayankandiyalEravathKanapravanKalliani Amma (Smt.) &Ors. v. K. Devi and Ors., [(1996) 4 SCC 76] held that the HMA, being a beneficial legislation, has to be interpreted in a manner, which advances the object of the legislation, which was intended to make social reforms and confer social status on these children.