Right of the Son on the Property

This article is written by Rishabh Pandey from Guru Gobind Singh Indraprastha University, New Delhi.

Introduction

Despite how pious the relationship between parents and their child is, challenging circumstances may arise leading to disputes. Even if after several attempts of resolving the conflict, it does not seem to be an option to carry on the relationship, you may feel the need to sever your ties with your once very beloved son. This article discusses whether you can disown your son or not, and if you can, what rights will he still have in the ancestral property.

Disowning a Son

●     Disowning in General:

‘Disowning’ a son is not recognized per se by the Indian legal system. In fact, the term in itself has a very wide scope. Disowning may be in respect to not having any moral relationship with the son; it may have to do with not wanting to maintain the child anymore; it may be done to safeguard oneself from the creditors of the son; or it may be to disinherit the son from your property.

As far as moral obligations are concerned, you may or may not feel the necessity to be obliged to perform them. However, legal obligations towards your son are must to be abided by. For example, you cannot disown a minor child and escape from paying him maintenance under Section 125 of the Code of Criminal Procedure, 1973.

No statute in India makes parents liable to pay the debt incurred by their son who has attained the age of majority. Therefore, you don’t need to take any ‘legal’ step to protect yourself. It is however prevalent and advised that you publish, in two local newspapers which are widely distributed in your area, that you are severing your ties with your son.

Such proclamation in the newspaper doesn’t have a dispositive legal effect, breaking all legally relevant familial ties.[1]This is a mere gesture to make the public aware of your intentions and sometimes to also warn them from giving any loan to the son.

●     Disowning With Respect to Property:

The real legal question here is, whether you can disown your son from your property or not. A person may have two kinds of property:

  • Ancestral Property: Property inherited by a Hindu from his father, father’s father or father’s father’s father, is ancestral property.[2] In the words of the Hon’ble Supreme Court of India, “Ancestral property means, as regards sons, property inherited from a direct male lineal ancestor, and as regards collaterals, property inherited from a common ancestor.”[3]
  • Self Acquired Property: Any property that is acquired by a person himself, either by the means of his own resources, or through a division of ancestral property, or what he acquires as a legal heir, or through a gift deed or a testamentary document such as ‘will’ etc. is his self acquired property. A property inherited by a person from a brother, uncle, etc. is also a self acquired property.

Right of a son in both the kinds of properties are discussed below.

Right of the Son in the Father’s Self Acquired Property

Defining what self acquisition is, Yagnavalkya says that “whatever is acquired by the coparcener himself without detriment to the father’s estate as present from a friend or a gift at nuptials, does not appertain to the co-heirs.

If the property is self acquired by the parents, a son has no legal claim in it. You can bequeath your property to anyone you wish to, by the means of will, or you may gift it to any person by a gift deed.

In a recent judgement of Delhi High Court, Justice Pratibha Rani has stated that a son has no legal right in the self-acquired property of his parents, unless he has a proof of his contribution towards the acquisition of the property.

He may be allowed to use the property on permission from his parents, but they are not obligated to allow him to live there.[4]

She further added, “Where the house is a self-acquired house of the parents, a son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents up to the time the parents allow.”

Therefore, you may not only not leave your property to your son, but you can also disallow him from residing at your self acquired house.

It should be noted that if parents die intestate, the son, no matter how poor his relationship was with the parents, will have succession rights in the self acquired property of the parents.[5]

Right of the Son in the Ancestral Property

Each son, right from his birth, gets an interest in the ancestral property equal to and independent of his father.[6] The son can assert this equal right with the father only when the grandfather’s property has devolved upon his father and has become ancestral property in his hands[7].

Therefore, any will disposing of the ancestral property along with self acquired property is invalid. In simple terms, a son cannot be excluded from the ancestral property. The intention of the father to disown his son is immaterial.

To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner.[8]

A grandson doesn’t have any claim on the grandfather’s self acquired property. If the grandfather executes a gift deed to transfer the property to his son, the grandson cannot claim the property by contending it to be an ancestral property. Here the son doesn’t receive the property by virtue of his being a son, but because the father wants to give him a gift. The property no longer remains to be an ancestral property merely because it was obtained from the grandfather.[9]

Moreover, a son not only has an equal right as the father on the ancestral property, but the coparcenary property as a whole.

Coparcenary property means and includes:

  • Ancestral property
  • Acquisitions made by the coparceners with the help of ancestral property
  • Joint acquisition of the coparceners even without such help provided there was no proof of intention on their part that the property should not be treated as joint family property
  • Separate property of the coparceners thrown into the common stock[10]

He cannot be excluded from it, regardless of the father’s wishes.

Conclusion

There is no concept of disowning a son in Indian legal system. It is immaterial, whether a father wants to or not, he has to maintain his child until he reaches the age of majority. With respect to the property law, a son may be disinherited from the self acquired property of the father, but he will still have equal rights as the father over the ancestral or the coparcenary property of the Hindu Undivided Family.

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Reference:

[1] Preeti Satija vs. Raj Kumari and Anr  C.M. APPL.4236/2012, 4237/2012 & 5451/2013

[2] U.R.Virupakshaiah vs Sarvamma & Anr, Civil Appeal No. 7346 OF 2008, Arising out of SLP (C) No. 11785 OF 2007

[3] Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099

[4] Sachin & Anr v. Jhabbu Lal & Anr RSA 136/2016 & CM No. 19123/2016

[5] Supra Note. 1

[6] Madanlal Phulchand Jain vs State Of Maharashtra And Ors, 1992 AIR 1254, 1992 SCR (2) 479

[7] C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar 1953 AIR 495, 1954 SCR 243

[8] Ibid.

[9] Ibid.

[10] Amit Johri vs Deepak Johri & Ors. DEL HC 2014, RFA (OS) No. 23 of 2013

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