Can children claim a share in their father’s property? Know the difference between ancestral and self-acquired property

A common misconception in family property matters is that children automatically have a legal share in every property owned by their parents. Under Hindu law, however, the rights of children depend significantly on whether the property is ancestral or self-acquired.

The distinction becomes particularly important when a father wants to sell, gift or transfer a house or land, or when his children want to claim a share in the property while he is still alive.

“Ancestral property” traditionally refers to property inherited by a male Hindu from his father, grandfather or great-grandfather, said Shabnam Shaikh, Partner at Khaitan & Co. Such property has a distinct feature because descendants can acquire an interest in it by birth.

In contrast, self-acquired property is generally property that a person has purchased or acquired using their own income, funds or resources. The owner has substantially greater freedom to deal with such property.

The distinction is important because a son or daughter does not get an automatic ownership right merely because they are the child of the person who owns a property.

Can a son or daughter claim a share in their father’s self-acquired property?

If a father purchases a house, plot or other property from his own income or funds, it would generally be considered his self-acquired property. His children cannot ordinarily demand a share in that property during his lifetime merely because they are his legal heirs.

For example, if a father earns money through his job or business and uses those funds to purchase a house in his own name, his son does not acquire a birthright in that house. The father can generally decide what he wants to do with the property.

This is one of the key differences between ancestral and self-acquired property.

According to Shaikh, a person is generally free to sell, gift or otherwise transfer self-acquired property without obtaining the consent of their children. The restrictions that apply to ancestral property do not apply in the same manner to self-acquired property.

An ancestral property, by contrast, can involve rights of sons, grandsons and great-grandsons arising by birth. Consequently, a person holding such property may not have the same unrestricted power to transfer it.

This does not mean that every property received from an earlier generation becomes ancestral property. The manner in which the property was acquired and the applicable succession law are crucial.

Does property inherited by a father automatically become ancestral property?

This is another area where property disputes frequently arise.

A person may assume that if a father receives a house or land from his own father, his children automatically obtain a share in it because the property has come down from one generation to another.

However, Shaikh said that following the enactment of the Hindu Succession Act, 1956, property inherited by a Hindu male or female is generally inherited absolutely by that person and does not automatically become ancestral property in the hands of their children.

This means that property inherited by a father from his father after the 1956 law may generally be treated as the father’s own property, rather than property in which his children automatically acquire rights by birth.

As a result, the father can generally deal with such inherited property according to his wishes, subject to the specific facts and legal circumstances of the case.

The historical concept of ancestral property therefore should not be applied mechanically to every property that has passed from one generation to another.

What happens to self-acquired property after the father dies?

The position changes when the owner dies.

While a father can generally deal with his self-acquired property during his lifetime, his children can become entitled to inherit it after his death, depending on whether he leaves a will and who his legal heirs are.

If a male Hindu dies without leaving a will, succession is governed by the Hindu Succession Act, 1956. His Class I heirs include his children, widow and mother. These heirs generally inherit the estate in equal shares, subject to the facts of the particular case.

For instance, suppose a father owns a house that he purchased entirely with his own money. During his lifetime, his son cannot ordinarily demand that the house be divided simply because he is the father’s child. The father can generally sell or gift the property without his son’s consent.

But if the father dies intestate, the house becomes part of his estate and the eligible Class I heirs can inherit it according to the law.

Therefore, a child’s right during the parent’s lifetime and the child’s right as an heir after the parent’s death are two different legal questions.

The broad takeaway is that being a son or daughter does not automatically give a person a share in a parent’s self-acquired property while the parent is alive. For ancestral property, however, descendants may have rights arising by birth. Whether a property is ancestral or self-acquired, how it was acquired or inherited, and whether the owner has made a will can all materially affect the rights of family members.