Property Right of son in dayabhaga

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Question asked on: 07/11/2015

Sir, my father, solemnised two marriage. Besides, I am only (son) and two sisters from 1st marriage, my mother died while I was eight years old, then my father got 2nd marriage, and have one son and one daughter.

My father was having total 150 decimal of land which he has received it from my grandfather as a natural sons property right. Last six months back my father has divided me, and we are separate now (I have one son and one daughter.

Now my father denies me to give any pieces of land, and he wants to give it to his son of 2nd marriage wife, please let me know the law regarding my ancestral property and in father’s self-acquired property? How can I get it?

Advised by: Shivendra Pratap Singh,

As per the Dayabhaga law of inheritance, the son does not acquire any interest in the ancestral property by birth. His right in property accrues immediately on the father’s death. In other words, after the father’s death, the ancestral property devolves upon the children. The estate will devolve only when the father dies intestate, i.e. without executing any Will.

Since the son has no interest in the ancestral property until the death of the father, therefore, he cannot bring partition suit. Hence, there could be no coparcenary between a father and son. [Gouranga Sundar Mitra v. Mahendra Narayan Mitra, AIR 1927 Cal 776]

In the Dayabhaga law, father is the absolute owner of all properties. No question of partition arises during his lifetime. [Satchidananda Samanta vs Ranjan Kumar Basu And Others AIR 1992 Cal]

The Dayabhaga does not create a concept of joint family property consisting of the father and the son. Because so long as the father is alive, he is the master of all wealth. 

Son does not acquire any interest by birth, therefore, cannot demand a partition of such property from the father as well as cannot call for an account of the management thereof from the father — [CIT vs Babubhai Mansukhbhai AIR 1977 Cal].

The right of partition open immediately after the death of the father. Therefore all children get right in the property. All children have equal right hence they can partition the property.

Thus it is apparent from the above discussion that you have no interest in the property. your father is still alive, and he is the absolute owner. The concept of joint family property does not find in Dayabhaga School of Hindu law.

You cannot get father’s properties (ancestral or self-acquired) in his lifetime. You have no right to claim partition or injunction because of lack of your interest in the property.

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