Known for its rich culture and traditions, India is a family-oriented country, with children continuing to live with their parents even after turning adults, which may be surprising for many people, especially those living in the west. Nevertheless, we take great pride in our heritage and will continue to do so. Another aspect of the traditional Indian household is the subject of inheritance, best described as a symbol of the lineage that transfers rights such as property, assets, and titles to another individual on the holder's death. For example, after their father’s demise, the son or daughter can legally claim ownership over their ancestral property. However, this may not be necessary in all cases, something we will walk through in the following blog.
Understanding the law of inheritance
Legally addressed as Succession laws, there are two ways to consider inheritance.
- Will/Testament
- Interstate Succession
Properties falling under the law of inheritance are Ancestral Property and Self Acquired Property. To understand this more in detail, especially from the perspective of a son’s right in his father’s property, let us look into one of India's most followed guides, the Hindu Succession Act 1956.
The Act covers inheritance among Hindus, Sikhs, Jains, Buddhists, and Sikhs, who are resided in classes depending on their relationships with the property holder, such as Class and Class II heirs. In their absence, the Agnates and Cognates receive equal shares of the property. In cases where the property holder has no heirs, the government establishes the right to it. In 2004, a significant amendment took place, dissolving the limited estate of women, giving them equal rights as men in the transfer of ancestral properties.
Since we are addressing a son’s rights in his father’s property, let’s understand the protocols followed in a Hindu Undivided Family.
Class I heirs have first right on the death of a Hindu male in the family, but if absent, the same rights get bestowed upon Class II. Nonetheless, in the absence of both classes, the Agnates and Cognates get equal shares.
Rights of Son in Father’s Property
Under the Hindu Succession Act, the purpose behind inheritance depends on two types Ancestral Property and Self Acquired Property.
What are the rights of the son if the property is Ancestral?
In the case of ancestral property, the rights are bestowed upon the son at the time of his birth. Inherited up to four generations of male lineage, a property is customary on the following grounds.
- If the father inherited the property from his father after the latter’s demise.
- If the grandfather split the property during his lifetime.
The son has a right to file for a partition suit for a share in the property and can do so during his father's lifetime. The son has the right to sell his share of the ancestral property to a third party even before the formal partition of the property takes place. The above rights do not apply to a stepson who does not count as a Class I heir.
What are the rights of the son if the property is self-acquired?
The son has no right over a self-acquired property but can claim his share if he can prove his contribution towards acquiring the property. If the father has already handed over the property to someone else, be it a will or gift, the son has no chance of having a share in the property. Under special considerations, the son can use the property on permission, but his parents are not committed to allowing him to live there.
What happens if the father gifts a property?
The property is not considered ancestral if a father has gifted it to his son. Hence, a grandson cannot claim a share in the property given to his father by his father. The property that a son receives as a gift from his father becomes his self-acquired property. Nevertheless, if he wants, the father offering the property to his son can make the fixed asset ancestral.
What role does a Will play in succession?
The Will serves as a legal document that allows the holder of the property to transfer or share their property depending on their wish. It is necessary to probate the Will post the passing away of the holder. Under Probate, the copy of the Will is certified under the seal of a court of complete jurisdiction with the administration’s grant of the estate.
Certain disqualifications exist under the Hindu Succession Act of 1956, covered under sections 24 and 28. A son or daughter will be disqualified from inheriting the property under the provision of murder. According to the act, a person who commits or attempts the commission of murder is barred from inheriting any property of the individual who has been murdered, no matter what the relationship may be. Therefore, if a son or daughter is found guilty of killing or commissioning of kill of their father, all their right to claim, even a share of the property, is seized.
In conclusion, the son does have a right to his father’s property but needs to be aware of the provisions and nature of the fixed asset.
