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# Right to ancestral property devolves by rule of survivorship

## And a child would have a right to enforce partition against his father

My child was born on 25 December 2005. His grandfather had made a Will in 2003, in which he has stated that if any child born in the family claims a right on any of his property then their right would be considered void and even his son (my husband) would be entitled only after my mother-in-law’s death. Can they bar my son’s right?

—Jyotsna Kathuria

The query put forth to us falls within the ambit of Family Law. In India, the statute that governs succession to a person’s estate, depends on that person’s religion. In this case, we are assuming that your husband’s father (“A") is a Hindu and that the property that is the subject matter of his Will is self-acquired property (i.e. property how so ever acquired, even through a Will or a gift, other than ancestral/co-parcenary property). Therefore, succession to his estate will be governed by the provisions of the Hindu Succession Act, 1956 (the Act). For the purposes of this query, any reference to ‘property’ will be to self-acquired property, unless specified. Therefore, as per the provisions of the Act, A is entitled to draw up a Will and deal with his self-acquired property in any manner that he deems fit.

In the present case, it appears that A intends to retain right, title and interest in his property during his lifetime. Upon his death, A wishes that his property be inherited by his wife (“B"), your husband’s mother, and upon the demise of B, the property should devolve on your husband (“C").

A has the right to dispose off his property and in any proportion that he wishes. He can, therefore, execute a Will evidencing his intention to bequeath his property to B by creating a “life interest" in her favour and up on her demise, to C. In other words, it is possible for A to bequeath his property to B to enjoy during her lifetime and thereafter to finally vest in C, all to the exclusion of your son.

C’s right to inherit A’s property will vest in C immediately upon the demise of A. But the property in question will devolve on C only upon the death of B. A can also bar the rights of any future child in the family to his property through his Will. Further, it may be noted that no child or grandchild has a right in the self-acquired property of the father/grandfather during the lifetime of such father/grandfather. If A were to die intestate (without having drawn a Will), then his legal heirs will have a claim over his property as per the provisions of the Act.

It may be noted that the rights in the ancestral property are determined per stirpes and not per capita. So, the share of each generation is first determined and successive generations in turn sub-divide what has been inherited by their respective predecessors. Rights to ancestral property devolves by the rule of survivorship and a child would have a right to enforce partition against his father.

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