Legal Advice

Can my sister claim share in ancestral property after partition?

Query

My father died in 2010. Thereafter, I have partitioned the ancestral property on mutual agreement of brothers. I have two brothers and one sister. Only brothers got share in ancestral property. I want to know whether my sister can claim share in ancestral property after partition. Brothers have no dispute in partition. After the partition I want to transfer this property to my son.  I think there is no ground to challenge the partition. Once the brothers have mutually partitioned the ancestral property my sister has no right to claim. Can my son sell all property to another person and purchase a new land in his name? This may protect my son’s right.

Advice

In Hindu law, daughters have the same rights as sons to inherit ancestral property according to the Hindu Succession Act, 1956. This means that a daughter has the same rights as a son to inherit the ancestral property as a coparcener, which is a member of a Hindu joint family who has an equal right to the property and its management. However, this right only applies to ancestral property, which is property inherited from the father, grandfather, or great-grandfather.

Now, if the father dies without making a will, the ancestral property devolves upon the coparceners. Hence, according to law, the ancestral property has also devolved on your sister because she is one of the coparceners. But if you partitioned the ancestral property with the intention to grab your sister’s share, then that partition is invalid and has no legal effect. This kind of partition is an example of a shady partition with ulterior motives to frustrate the legal provision.

Moreover, in the Vineeta Sharma case, the Supreme Court has held that a daughter by birth acquires rights in the ancestral property. Therefore, the daughter can regain her share even after the notional partition. If you partitioned your share and gave nothing to your sister, this alienation is only to protect your share because you think that after the partition, your sister will not claim her right.

However, this is a wrong assumption because the initial partition is invalid. You had no right to do a notional partition, and Section 6(3) of the Hindu Succession Act 1956 specifically bars such a partition. You cannot prevent your sister from claiming her share because she has the right even after the partition.

Therefore, if you grabbed your sister’s share and orally divided the property among sons only, this is illegal and violates the provision of Section 6(3). The partition is illegal ab initio, and any subsequent transfer will not give a good title. Your sister can still claim her share even after the partition.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Ancestral property | Property

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