It is time to remove widespread misconception amongst common masses and even amongst persons who have studied law that a son has a share in the property inherited by his father. It is not so after coming into force of the Hindu Succession Act, 1956.
The Hindu Succession Act, 1956 made a change in the law applicable to Hindus in this regard. However, in the last over half a century, the understanding among the masses continues to be of the law as it was prior to 1956 i.e. of a son acquiring a share in the properties inherited by his father from his own father.
Landmark Judgments of Supreme Court on Inheritance of an immovable property
The Supreme Court around 35 years back in the judgment in the case of Commissioner of Wealth Tax Kanpur & Others Vs. Chander Sen & Others, (1986) held that after passing of Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an Hindu Undivided Family (HUF) came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar , 1987 wherein the Supreme Court reiterated the legal position that after coming into force of Sec.8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property.
If a person dies after passing of Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors – in – interest is no doubt inheritance of an ancestral property but the inheritance is as a self acquired property in the hands of the successor and not as an HUF property although the successor indeed inherits ‘ancestral’ property i.e. property belonging to his paternal ancestor. The only way in which a Hindu Undivided Family / Joint Hindu family can come into exitance after 1956 is if an individual’s property is thrown into a common hotchpotch.
Order VI, Rule 4 of CPC
So it is not easy for a son to make a claim on the inherited property of the father. One has to keenly observe the property relationship between the family members. the question of Partition of property arises when there is a joint Hindu family or a Hindu undivided family. The person making claim for partition must have his share as a coparcener. A simple declaration in plaint that property is a joint Hindu family or HUF property is not enough. Details of the creation of the joint family and its members and description of the property developed in joint family should be properly shown in the cause of actions para of the plaint as required under Order VI, Rule 4 of Civil Procedure Code.
Traditional Hindu Law on Inheritance of a Property
Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person A inherited property from his father or grandfather or great grand father then the property in his hand was not be treated as HUF property but was to be treated as an HUF property in which his son, grandson, great grandson had a right equal equal to A. After passing of The Hindu Succession Act,1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self acquired property of the person who inherited the same. The Supreme Court has made this point very clear in Yudhister Vs. Ashok Kumar, 1987.
Delhi High Court’s Observation on Inheritance of a Property
Delhi High Court in Sunny (Minor) & Another Vs. Sh. Raj Singh & Others decided on 17.11.2015 considered the Chander Sen Judgment and observed that Under Hindu Law the moment a son is born, he gets a share in father’s property and become part of the coparcenary. His right accrues to him not on the death of his father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grand father or from any other source, be it separated property or not, his son should have a share in that and it will become part of joint Hindu family of his son and grand son and other members who form joint Hindu Family with him. The court further observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956, and therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis- a – vis his sons.