Can Son Claim Birthright In Father's Exclusive Property? What Supreme Court Said

A son cannot claim a birthright in his father's share of a property that has already been partitioned and become his father's exclusive property, the Supreme Court has held while dismissing an appeal seeking a half share in the property.

The court was examining whether a son could seek partition of his father's property during the latter's lifetime on the ground that it was ancestral or joint family property.

The case arose from a partition suit filed in 1997 on behalf of a minor son, through his mother, seeking half share in a property measuring 1,811 sqft. He said the property originally belonged to his grandfather and that he had acquired rights in it by birth.

The Supreme Court, however, noted that the grandfather's death and the opening of succession preceded the appellant's birth. The grandfather's property was the subject of partition proceedings instituted in 1993 and the appellant was born on January 6, 1994, while a settlement was arrived at on February 3, 1994.

The court held that the grandfather's property had devolved upon his Class I heirs under the Hindu Succession Act, 1956. Following partition, the respective shares became the exclusive properties of the co-sharers.

The share falling to the appellant's father thus became his exclusive individual property and could not be treated as coparcenary property or acquired by birth. The court observed that the father had subsequently sold his share through sale deeds, which were never challenged.

Holding that the son could not claim rights by birth in property that had already become his father's exclusive property, the Supreme Court found no infirmity in the judgment under challenge. The judgment under challenge had held that when a divided son or daughter has got the property belonging to their father in a partition, whether it is ancestral or self-acquired property of the father, they became absolute owners of their respective shares and they can deal with the property exclusively excluding their sons.

According to the judgment, the grandson does not get right from his father by birth who is excluded by virtue of Section 8 of the Hindu Succession Act and he cannot become a coparcener (rights by birth) in the property in question.