According to the Indian Succession Act, 1956, and the Indian Succession (Amendment) Act, 2005, minor children, whether boys or girls, have a right to the father’s ancestral property by birth. In case of the parents’ self-acquired property, they can give it to anyone they want through a written will. However, if they die intestate, or without a will, the children being Class I heirs have a first right to their property. If, on the other hand, the children are minors, they do own the property, but cannot legally manage it. So a legal guardian, or one appointed by the court, has to file a petition in the court to manage the property on behalf of the minor till the child becomes an adult.
Property Rights of a Female Child after their parent’s divorce
When a couple gets divorced, the biggest casualty of this divorce is the children. They suffer from emotional and mental trauma. Future insecurity and doubts over the inheritance of property should not be added to this already stressful time. Hence, it is important to know how a child would get a share in their parents’ property after their divorce.
The daughter’s rights in the share of her father’s property have always been one of the most talked-about aspects dealing with equality and justice. After 2005, daughters became co-parceners in ancestral property. In 2020, the Supreme Court held that daughters would have an equal right to their father’s property, even if they passed away before 2005. This further strengthened their inheritance rights.
Legal rights of a son on father’s property after divorce of parents
The son is treated as a Class I heir of his father’s property. He has a legal right over his father’s ancestral property. He also has an equal share in his father’s self-acquired property if the father dies intestate.
According to the Mitakshara School under Hindu Law, the son has a right by birth in his father’s and grandfather’s property. If it is a self-acquired property of the parents/father, the son cannot claim it. But there can be a consideration regarding the same if he can prove his contribution to the property. The self-acquired property is unlike ancestral property. It is created and contains his earnings and property, which he has acquired independently.
While a son has a right by birth in his father’s ancestral property, he does not have such rights in his father’s self-acquired property. If the father chooses to exclude his son from his will, a son will not get any share of his father’s self-acquired property.
A son is his father’s legal heir and co-parcener in ancestral property. If the parents get divorced, a son gets his share of inheritance in the ancestral property, as it is his birthright. A son may also get a share of his father’s self-acquired property after divorce if his father does not exclude him from the same or dies without creating a will.
The co-parceners’ daughters will benefit from the judgement and will be given equal rights as sons in their father’s property. They would now have a right to inherit their father’s property by birth. The daughter can also request a share in the property and bequeath her share in a will. But this case is only limited to HUF property.
A daughter has the right to both her father’s ancestral property, which has been passed from her grandfather and in the self-acquired property of her father. A father, however by will, may exclude a daughter or a son from his property.
A daughter will continue to be a co-parcener in the ancestral property, even after her parents’ divorce. She will have a claim on her parents’ property even after divorce. However, if the property is self-acquired, then she will have a right over the property if she has not been specifically excluded from the will of her parent’s intestate.