Write a short note on the right of a minor in ancestral property.

Question: Write a short note on the right of a minor in ancestral property. [RJS 1991]

Find the question and answer of Hindu Law only on Legal Bites. [Write a short note on the right of a minor in ancestral property.]

Answer

Unlike a major coparcener, who has a right to demand partition personally, and this demand needs to be supported with reasons or justifications, a minor coparcener though equal in ownership of the property with a major coparcener, does not have a right to demand a partition from the father or Karta. But this does not mean that at this instance no partition can be affected. A minor needs special protection and ordinarily the father or the Karta is presumed to act in his interests. But there may arise a situation where the father or the Karta acts in a manner that may adversely affect the interests of the minor. It may be sheer mismanagement, fraud, a misappropriation, alienation, or conversion of joint family properties in their name, or denial of maintenance to the minor.

The categories of minors under Hindu law and their rights are as follows:

Male minor coparcener

All coparceners, whether minor or major, are entitled to get a share at the time of partition. Since they had an undivided interest in the property, a partition merely divides their title and give them exclusive ownership. Whereupon a partition it is only the branches who separate the minors in a particular branch that may not be allotted a share, and the same can be held by them in common with their father and brothers. All coparceners, i.e sons, sons, and son's sons have a right to obtain a share on a partition.

Female minor coparcener

Section 6 of the Hindu Succession ( Amendment) Act 2005 brings the discrimination against the daughter to an end, as her rights and liabilities are the same as that of a son which implies that the daughters are now capable of acquiring an interest in the coparcenary property, demand a partition of the same and dispose it off through a testamentary disposition.

Under Section 6 for the devolution of coparcenary property in a suit for partition, where the parties themselves admit that the property was ancestral, daughters are entitled to an equal right as that of the son as coparceners in the joint family property.

Son born of a void or voidable marriage

A child born of a void or voidable marriage is a legitimate child of parents and statutorily entitled to inherit their separate property, yet he cannot inherit from any other relation of the parents. His rights are better than those of an illegitimate child but inferior to those of a child born of a valid marriage.

Illegitimate son

An illegitimate child is not entitled to succeed his father. But under the Hindu Succession Act, illegitimate children are deemed to be related by illegitimate kinship to their mother and to one another, and their legitimate descendants are deemed to be related by legitimate kinship to them and one another, and can therefore inherit from each other under the said Act. An illegitimate child can inherit the property of his or her mother or of his or her illegitimate brother or sister(uterine blood). A mother also can inherit the property of her illegitimate child. The father has no right to inherit the property of his illegitimate child.

After born child

A son who is born after a petition has been affected in the family, can be a son conceived and born after the partition, or born after partition, but conceived before the partition. The rule is that if the pregnancy is known, then either the partition should be deferred till the birth of the child, or a share should be kept apart for it, to be given to him when he is born. If a female child is born the shares could be redistributed among all the members.

Adopted child

A child becomes a member of a joint family by a valid adoption. From the moment of adoption, he is deemed dead for the natural family and is presumed to be born in the adoptive family and acquires a right by birth i.e from the date of adoption, in the joint family property. He has a right to demand partition and is entitled to share equal to that of the adoptive father.

Related case laws

1. Ratnam v. Kuppuswami, 1976 AIR, 1 1976 SCR (1) 863

The Supreme Court in this case held that it is the duty of a court in such a case to protect the interests of a minor and the onus of proof that the partition was just and fair is on the party supporting the partition.

2. Pedasubhayya v. Akkamma, 1959 SCR 1249

It was stated that a Minority is not a bar to seeking partition, but a minor cannot seek partition directly. He can institute a suit for partition through a next friend in a court of law. The court will take cognizance of the situation and would enforce partition only when it is satisfied that the Partition would be beneficial to or would promote the interest of the minor.

3. Prakash v. Phulwati, (2016) 2 SCC 36

In this case, the Supreme Court held that the Amendment Act was prospective in nature. Hence, from the passing date of the Amendment Act, the daughters would be coparceners and have an equal share same as that of sons in a joint Hindu family property.

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