In the elder brother’s property, can younger brother claim the share? Fact Check.

Myth:

*In the big brother’s property, small brother can claim the share during the partition.

*In small brother’s property, big brother can’t claim for a share during the partition.

In this article, we will check whether these statements are true or not? What is actual rule for the partition?

Introduction:

Partition is a process of separation by the virtue of which the “Joint family status” of a family comes to an end.

Here for better understanding in simple words, the partition is defined as the division of the property for their specific shares among the family members (Coparcener).

Who are Coparceners? Who can claim share in the property?

Coparcener is a person who acquires a right to the ancestral property by birth in the family.

Coparcener has a right to demand partition in the HUF property. This right comes into being not by choice but by God’s grace.

After the Hindu Succession (Amendment) Act, 2005, daughters are also entitled to claim the property.

*This is to be noted, till only four generations (Property Hold by one generation +3) coparcenary rights can be claimed and Once an ancestral property is partitioned amongst the coparceners it loses the characteristic of ancestral property and becomes self-acquired property.

Laws Governing Partition in India:

1. Partition Act, 1893
2. Indian Succession Act, 1925
3. Hindu Succession Act, 1956
4. Muslim Personal Law (Shariat) Application Act, 1937 (applicable only when both parties are Muslim).

Types of Property?

1. Ancestral Property

Ancestral property is such property that is inherited from the father, father’s father and so on (ancestors) [1]. Simply, the property which passes from generation to generation is called ancestral property.   Honorable S.C has said in Maktul vs Mst. Manbhari & Others[2], that,” Ancestral property means, as regards sons, property inherited from a direct male lineal ancestor, and as regards collaterals, property inherited from a common ancestor”.

Illustration: Your great grandfather owns property in Dehradun. After his death, this property passes to your grandfather, then to your father and so on. These types of property are termed ancestral property.

2. Self-Acquired Property

Self-acquired property is such property which is acquired during the lifetime of a person by his own earnings.

Illustration:

Ram is living in his ancestral house situated in Bihar. Fortunately, he got an opportunity to work with any company, suppose “Vestige” and he purchased another house in London from his own earnings. So, this house in London is his self-acquired property.

Answer of our Question:

Coparceners can claim for share only in the ancestral property. Any claim to the self-acquired property is not maintainable. It is up to his will, whether he wants to give that property to anyone or not. He is not bound to do so.

Straightly coming to the answer of our question,

If the big brother has purchased any property from his own earning, his small brother is not entitled to claim any share from the same property.

The same goes for small brother, if he has purchased any property from his own earning, no one can claim a share from it.

Going deeper, even if the father has purchased any property from his own earning, no coparcener can claim a share from that property. It is up to his will to whom he wants to give that property. After his death, in the absence of any will, that property can be claimed by the coparceners only.

*Always keep in mind, the self-acquired property is not subject to the partition. So, if you are bothering that if I will buy any property, I have to share with my smaller brother and so on, need not worry. It is your self-acquired property and no one can claim a share in that.

Q. What if you have paid some amount of money in purchasing the house for your father and this house has been registered in the name of your father?

Answer: Again no need to worry.

If you have paid any sum of money to purchase that property and that has been registered in the name of your father, it comes under the self-acquired property of your father. Even though, you can claim the share from that property because you have contributed the money to purchase that property. You will get a share from the property according to your contribution to that property.

---

[1] U.R.Virupakshaiah vs Sarvamma & Anr, Civil Appeal No. 7346 OF 2008, Arising out of SLP (C) No. 11785 OF 2007

[2] Honourabkle S C has said in Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099

---

Author: Raghvendra Kumar

*The content of this article is intended to provide a general guide to the subject matter only. If you have something to mention, please write down in the comment box.