Can a father give his property to one son?

Can a father give his property to one son

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.

Read: Lawyer Nidhi Singh interview on Asian Voice

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.

Property rights of the second wife and her children

Property rights of second wife

Property rights of the second wife and her children can be studied and evaluated as rights of the second wife and her children born out of the second wedlock, in the property of their father.

Polygamy was recognised and acceptable among Hindus in ancient times. In modern India, we have a law in place, Hindu Marriage Act, 1955, which prohibits bigamy/polygamy. Wife is entitled to various rights if the marriage is valid under the Act.


Also Read: Legal Rights of a Wife


Valid marriage:

A marriage is valid under Hindu Marriage Act if it satisfies the conditions given under section 5 of Hindu Marriage Act, 1955.  One such condition is that at the time of marriage neither party has a spouse living or an existing valid marriage. If at the time of second marriage, any party has a spouse living or the earlier marriage has not been set aside by way of a decree of divorce/annulment, then such a second marriage is illegal.

Status of second marriage and rights of the second wife:

  • When the person governed by the provisions of Hindu Marriage Act, has married the second time and the second marriage is null and void, the second wife in such a situation has no right to inherit any property of her husband
  • If the second marriage is a valid marriage as per the provisions of the Act, then such a second wife has same rights in the property of her husband as that of the first wife.

The right of children of the second wife:

  • In case, the second marriage is a valid marriage, children born out of this wedlock share equally with the children of the first wife.
  • Even if the second marriage is void or voidable under the Hindu Marriage Act, the children of the second marriage are considered as legitimate children, and they have a right to inherit from the property of their father.
  • However, under section 16 of the Hindu Marriage Act, such children have a right to inherit the property of their parents alone.
  • They can inherit the property of their father, whether self-acquired or ancestral but not the ancestral joint family properties. It implies that they cannot inherit ancestral property other than the share of their father in the ancestral property.
  • The law says that the children of the second wife have equal rights as the children of the first wife on their father’s (self-acquired and ancestral) property. 

Read: Financial settlement during the divorce


The right of the second wife to maintenance:

If the second marriage was performed without disclosing the fact of existing first marriage, the second marriage is not valid. However, the second wife gets the status of a legally wedded wife only for claiming maintenance.  Children of such second marriage also have a right to maintenance.

This right has been recognised by courts while interpreting the law to advance the objective of the Act and to suppress the mischief of the second marriage (bigamy) as intended by the legislature.

 The right of second wife’s children from her previous marriage:

Even if the second marriage is valid under the Hindu Marriage Act, the children of the second wife from her last marriage have no right to inherit the property of deceased (their father from second marriage). The stepson is not included in the term “son” used in the class of heirs in Hindu Succession Act.  It can be a natural son or an adopted son.

Property rights of second wife are subject to the status of second marriage. If the second marriage is valid as per law, she enjoys equal rights in the property of her husband as the first wife has otherwise no right to inherit.

Can you sell your share of an Inherited Property?

Can you sell your share of an Inherited Property

The question of selling a share in an inherited property arises when you inherit a property jointly with others. There is joint ownership, and there are co-owners. To determine the share of each co-owner, we need a partition deed.

After the amendment in the year 2005, in Hindu Succession Act, 1956 the interest of deceased Hindu, shall devolve by testamentary or intestate succession as per the Act. The law of intestate succession is more appropriately the law of inheritance.

The self-acquired property can be bequeathed by will by the owner to anyone even to the exclusion of legal heirs, but the ancestral property devolves as per the law of succession.

Types of co-ownership

Co-ownership can be:


Guide for NRIs to Sell Inherited Property in India


  • Tenants in common – Share of each co-owner is not specific. When one co-owner dies, his share passes on to his heirs as per his will or intestate succession. The heirs become tenants in common with other surviving co-owners
  • Joint tenancy – Each co-owner owns an equal share in the property. When a co-owner in joint tenancy dies, his share passes to surviving co-owners. There is a right of survivorship.
  • Tenancy in entirety – A particular kind of co-ownership where husband and wife share equally. None of them can sell the property without the consent of other.

Unless expressed, in the document of title to the property, the law presumes co-owners to be tenants in common u/s 19 of Hindu Succession Act, 1956.  It means no right of survivorship.

Rights of Co-owners

A co-owner has


How to deal with the inherited property – Inheritance law in India


  • Right to use
  • Right to possession
  • Right to dispose of off his share in the property (with or without the consent of other co-owners as provided in the document of title to the property)

Division of share of co-owners by partition

The shares of the co-owners are undivided. A partition deed is required to divide the property among the co-owners so that each co-owner gets his share to which he is entitled to as per law. Partition can be

  • By mutual consent
  • Through court by filing a partition suit.

A co-owner’s share in property is inheritable and transferable.

Undivided share of co-owners

The co-owner can sell even his undivided share in the absence of any partition deed. The buyer of the share steps into the shoes of the co-owner. He can enforce partition. He acquires the rights of the transferor.

Do we need the consent of other co-owners to sell the share in an inherited property?

According to the Transfer of Property Act, every co-owner has a proprietary right of the entire property. The sale has to be made with the consent of all co-owners. But if there is an agreement that gives the co-owners exclusive rights to certain parts/portions of the property, a co-owner can sell his portion.

However, if the dwelling house is the subject matter of sale, then

  • All co-owners who jointly own the house must give their consent.
  • The transferee does not get the right to joint possession with other co-owners.

4 Easy Steps For NRIs To Sell Inherited Property In India


Generally, co-owners are free to transfer/sell their share in the inherited property. However, one co-owner cannot transfer the share of other co-owner without permission.

Selling the share in inherited property involves an understanding of the nature of co-ownership and rights of all co-owners. Partition deed is required to determine the share of each co-owner, with clarity.

Inheritance under Hindu Succession Act – Who can/Who cannot?

Inheritance under Hindu Succession Act – Who can Who cannot

Inheritance issues can threaten to create divides that are unimaginable and unmanageable! We frequently have clients coming to us with these problems, and we endeavour to get fair deals for all involved.

The Hindi Succession Act, 1956 has been enacted to evolve a uniform system of property inheritance. The Act applies to intestate succession. The Act has been amended to keep pace with changing social requirements.

There is a list of heirs provided in the Schedule of the Act. These heirs are entitled to intestate succession. The Act applies to all those who are Hindu as per the definition is given in the Act. It does not apply to those who are Muslim, Christian, Parsi and Jew by religion.

All the heirs who are entitled to inherit under the Act have a right to succeed intestate succession. Many people come to us for queries in property inheritance. Some of the frequently asked questions are:

1. What does intestate mean?

Intestate means a person who has not made any will of his property. Even if a will has been made, but it is not capable of taking effect, it is equivalent to a person dying intestate.

2. Who is an heir?

As defined in the Act, an heir is any person, male or female who is entitled to succeed to the property of an interstate.

3. What is the order of succession, if any?

Under the Hindu Succession Act, inheritance of property takes place as follows:

A. In case of a male dying intestate, the order of succession is:

  • Class I heirs
  • Class II heirs ( if no heir in Class I)
  • Agnates (if no heir in Class I and Class II)
  • Cognates (If no heir in Class I, Class II and Agnates)

B. In case of a female dying intestate, the order of succession is:      

  • Sons and daughters (if predeceased, their children) and husband
  • Heirs of husband
  • Mother and father
  • Heirs of father
  • Heirs of mother

4. Is there any disqualification, in property inheritance under Hindu Succession Act?

Yes, there are certain disqualifications provided in the act which bars a legal heir from inheriting the property. These are:

  • Murderer: A person who commits murder or abets the commission of murder is disqualified from inheriting the property of:
  1. The person murdered
  2. Any other property to which he becomes entitled to succeed as a result of murder

For the disqualification, Commission of Murder and Abetment (assisting) of murder stand on the same footing.

  • Conversion: A Hindu, who converts to another religion, he is not disqualified. His children who are born after his conversion and their descendants are disqualified. The rule applies only if they are converts when the succession opens.

Any disease, defect or deformity in the person is not a disqualification. It will not disentitle him for property inheritance under the Hindu Succession Act.

5. Can a widow inherit after remarriage?

Yes, widow remarriage is no bar under the Act, to inherit her deceased husband’s property.

6. Can a stepson inherit under the Act?

No, the expression “son” in Hindu Succession Act does not include stepson. It includes an adopted son.

All legal heirs as described in the Schedule of the Hindu Succession Act are entitled to inherit. There is a specific mention of disqualifications in the Act. These disqualifications will disentitle an heir for property inheritance.

Guide for NRIs to Sell Inherited Property in India

succession certificate

STEP 1: TRANSFER TITLE OF THE PROPERTY

After inheriting the property from your ancestor, the first thing that you must do is transfer the title of the said property to your name. This can be done by the process called ‘mutation of revenue records’. For this you would need a copy of the will; in case there isn’t one, a Succession Certificate from a local court would work too.

STEP 2: GET THE REQUIRED DOCUMENTS IN ORDER

Here’s a list of all the documents that you would require:

  • Original Purchase Agreement, i.e. title document of the said property.
  • Original Share Certificate, in case of the unit in a co-operative society.
  • No objection certificate, issued by the said society.
  • Copy of approved plan and occupation certificate, which would be issued by the concerned authority, a municipal corporation.
  • Lawyer certificate, in case the seller does not possess the original documents stated above, a certificate from his lawyer proving that he is the rightful owner would be required.
  • PAN number, It is essential to apply for Tax Exemption Certificate under Section 197.

STEP 3: IDENTIFYING PREFERRED SALES METHOD

To carry out the transaction for the sale, the NRI can either hire a professional company or he can do it himself.  These companies provide end-to-end solutions including the identification of buyer, handling legal issues, due diligence and the tax issues. But, for these services that they provide, they charge a fee, which is a percentage of the sales’ consideration.

STEP 4: COMPLETING THE TRANSACTION

This can also be referred to as the actual process of the sale, and this can further be divided into the following steps:

  • Identifying the sale value, in case you have hired a firm, they would provide you with the complete data to determine the price such as the value of similar properties in the same locality. If you are doing the transfer on your own, you would require the similar data.
  • Managing structure of the transaction, unlike the prevalent practice of use of cash, something that the NRIs do not prefer using, one can easily sell the property without involving the cash component.
  • Issue an Admit Power of Attorney, an Admit PoA states that while the documents are executed by the owner, the PoA holder would merely represent him in the registration office.
  • Tax Issues, immovable property sold after 3 years of purchase is taxed at 20.6% in India. Further, in case of NRIs, it is imperative for the buyer to deduct tax at source, which presents another set of complications for the NRIs.