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Ask Mint Money | Child will have rights in ancestral property even if parents divorce

Ask Mint Money | Child will have rights in ancestral property even if parents divorce
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First Published: Mon, Jun 13 2011. 10 31 PM IST
Updated: Mon, Jun 13 2011. 10 31 PM IST
I have inherited a plot and a flat from my grandfather through his will. The title of the plot could be under dispute but there is no dispute on the flat. Can I only take the flat?
-Y Jain
This will depend on the specific wording of your grandfather’s will. Section 122 of the Indian Succession Act, 1925 provides that if a bequest imposes an obligation on the legatee, the legatee must accept the bequest fully or nothing at all. However, Section 123 provides that if there are two independent bequests, the legatee can accept one and refuse the other even if the first is beneficial and the second is onerous.
If the will said something like: “I bequeath all my immovable property to my grandson”, and your grandfather’s immovable property comprised of only the plot and flat, then you would have to take both or none. But if the will said something like: “I bequeath the plot or land to my grandson”, and separately provided, “I bequeath the flat to my grandson”, then you could take just the flat.
I am divorced with a nine-year- old son. I have the custody of my son, but the house we used to live in is with my ex-husband. Both of us haven’t remarried. Will my son inherit the house?
-Nalini
It has been assumed that you and your ex-husband are Hindus and that the house is not tenanted or taken on a leave and licence or lease basis.
If the house is solely owned by your ex-husband and acquired through his own earnings, then he can bequeath all his interest in the house to anyone through a will under the Hindu laws of succession. If upon his death, there is a valid will and the legatee is not your son, your son will not be able to claim any interest therein. But if your ex-husband dies intestate, then you (provided you don’t remarry) and your son will get the house. If your ex-husband dies after remarrying, then the house will be divided among you (if you don’t remarry), your son, his second widow and any children from remarriage.
But if the house is an ancestral property then your son would become a coparcener by virtue of his birth. Your divorce will not affect your son’s rights. If your ex-husband and son are the only coparceners, then each will have a share in the house. Your ex-husband will be allowed to bequeath his individual undivided interest in the coparcenary property to anyone, but your son’s right remains intact. If your ex-husband dies intestate, then his interest in the house will devolve by survivorship upon the surviving coparceners, your son in this case. In case he remarries and has any children out of the re-marriage, then the coparcenary shall consist of your ex-husband, your son and such other children, and upon his death his share will devolve equally between your son and the other children. If he adopts a child, that child too will become part of the coparcenary.
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First Published: Mon, Jun 13 2011. 10 31 PM IST