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.

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.

Who Has the Right Over A Woman’s Property?

Who Has the Right Over Woman's Property

Rights of a woman to a property as well as rights of others in her property vary a lot and are influenced by various factors like culture, religion, the social status of the woman and the development level of the society to which she belongs.

A woman may acquire property as:

  • Ancestral property
  • Self-acquired
  • Inherited
  • Received as gift/will

In India, the property rights of women are governed by law enacted by the legislature and personal laws.

A. In the case of Hindu women (Jain, Sikh and Buddhists are included)

The property of a woman devolves as per the Hindu Succession Act, 1956. The Act deals with intestate succession and not wills.

Hindu woman is an absolute owner of the property acquired by her through inheritance, partition, gift, will, in lieu of maintenance or purchased by her. The ownership gets limited in case the property transfer is subject to some restriction.

Sec 15 of the Act, 1956 provides the list of heirs of Hindu Woman’s property if she dies intestate and section 16 prescribes the order of preference:

  • Own children, children of predeceased children, husband – all share equally
  • Heirs of the husband (only when heirs in point 1 are absent)
  • Parents of Hindu woman (only when heirs in point 1 and 2 are absent)

Two exceptions to this rule are

  • If property by a Hindu woman is inherited from her father – in the absence of her children or predeceased children’s children, it goes to the heir of her father and not to the husband.
  • If the property is inherited from her husband or father in law – in the absence of her children or predeceased children’s children, it goes to heirs of the husband.

In case of self-acquired property, it is always advisable to make a will in time so that the property is bequeathed to beneficiaries one desires. As per the scheme of the Act, the self-acquired property of a Hindu Woman would go to heirs of the pre-deceased husband in case she dies intestate and has no issues.

After the amendment of 2005 in the 1956 Act, daughters are also coparceners, and they inherit the share in the ancestral property equally as a son and subject to same rights and liabilities as a coparcener. If she dies intestate, her interest devolves as per 1956 Act. She also has a right to make a will of her share.

Read More: Property rights of daughters Under Hindu Law in India

B.    Muslim woman

Under Muslim Law, there is no distinction between self-acquired or ancestral property for inheritance purposes. Inheritance opens only on the death of a person. Before a person dies, no legal heir has any right in the property. Legal heirs in Muslim law are divided into two categories

  • Sharers
  • Residuary

Sharers get their share first and residuary get what is left.

If A Muslim woman inherited property from any relation i.e. husband, son, father, mother, she becomes the absolute owner of her share and can dispose it. A Muslim woman in inheritance gets half the share of what male heir gets.

If a Muslim woman wants to make a will of her property, she cannot give away more than one-third share of her property, and if her husband is the only heir to her property, she can give two-third of property by will.

A child in the womb of his mother is entitled to inherit if born alive.

C.    For others (Christian, Parsi and Jews)

For women of faiths other than Hindus, Buddhists, Sikhs, Jains and Muslims, succession whether Testamentary or non-testamentary, is governed by India Succession Act, 1925. Blood relatives of woman inherit even in the presence of husband and husband’s relatives. Inheritance laws under this Act are generally gender just.

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.

Married Woman’s Share In Father’s Property

Married Woman’s Share In Father’s Property

Marriage is a sacramental union in Hindu Law.  But most of the rules and guidelines in this union are laid down for married women only.

With the passage of time, married women are trying to balance this union with both husband and wives enjoying equality in marriage. Married women are becoming aware of their rights as wives, mothers and married daughters.

Married women’s rights include:

  • right of inheritance in parent’s property
  • the right of maintenance for herself and her children
  • right against domestic violence
  • right to residence
  • right against polygamy

The list is not exhaustive and can be altered with changing times and social conditions.

Undoubtedly, the gender equality comes more with equal financial rights than anything else. The study of laws related to married women’s right in the property of her parents and her husband becomes significant.

Hindu Succession Act, 1956

  • Hindu Succession Act, 1956 – Hindu Succession Act contains provisions for intestate (the property for which there is no will) succession among heirs and applies to all who are Hindus under the provisions of Act.
  • The Act recognizes the concept of HUF (Hindu Undivided Family), which is a group of lineal descendants of a common ancestor. First four generations (only male members of HUF) are called coparceners and these coparceners acquire an interest in the coparcenary property by birth.
  • Coparcenary property is a property which has passed undivided from a common ancestor to four generations. Both ancestral and self-acquired property (which is pooled in joint property) can be coparcenary property.
  • The wives and daughters of coparceners also have a share in the undivided property but not the birthright in the undivided joint property. They are members of HUF but not coparceners.

Married Women’s Rights (Right of a Married daughter in her father’s property) under Hindu Succession Act, 2005

Once the daughter is married, she ceases to be part of HUF and loses any right in the father’s property. But now there has been an Amendment in the Act in 2005, and it has brought sea changes in the position of daughter:

  • The daughter shall also be a coparcener by birth, e. she inherits equally as other coparceners in the undivided joint family property. Earlier the daughter was only a member of HUF and not a coparcener. It means she was not entitled to seek partition. Now she is a coparcener and has same rights and liabilities as a son. (Only daughters can be admitted in coparcenary after amendment. Wives, mother and widows are still not part of coparcenary)
  • Daughter is now on equal footing with a son as both have a birthright in coparcenary property
  • Daughter can ask for partition, and she has an equal share in the property
  • The daughter living or dead on the date of Amendment (9th September 2005) has share in her father’s property – thus her children can claim if she is dead.
  • In February 2018, in a judgment, it has been made clear by Supreme Court of India that the benefits of the amendment will be available to all women whether born before or after the date of the amendment. The marital status of the daughter also will not make any difference. Thus women can file suit for the partition to claim their share in father’s property.

Now women enjoy rights in the property of their father by birth. Marital status makes no difference. In the case of the self-acquired property of the father, both sons and daughters enjoy equal rights. Thus married woman’s right in their father’s property is similar to that of a son.