Birth Right in Joint Family Property

Karmanpreet kaur*

Joint family property is that property in which every coparcener has an interest by birth, and can claim partition. It is also known as the ancestral or coparcenary property or unobstructible heritage.

Coparcenary property is that property in which a coparcener has a right by virtue of his birth in the family. Ancestral property is all property inherited by a male from his father, paternal grandfather or paternal great-grandfather, in which under the Mitakshara School, the sons, grandsons and great-grandsons of the person acquire an interest by birth.

 In Shreya Vidyarthi versus Ashok Vidyarthi and Ors. (2016) 1 CCC 301 SC; Where the the second wife received the insurance money follow,ing death of her husband and the same was used for the purchase of suit property along with other funds which she had generated on her own, it was held that such amounts constitute the entitlement of all the legal heirs of the deceased/ husband though the same may have been received by the second wife as nominee of her husband.

Ancestral property means the property which flows from generation to generation by succession or by survivorship. In order that the property should be ancestral it need not necessarily belong, in the proper sense of the word, to the ancestors. The property becomes ancestral as soon as a man gets it from his ancestors.

The Supreme Court in Mangamal Thulasi v.TB. Raju (2018) CCC 576 SC, held that

any property inherited up to four generations of male lineage from the father, father's father, or father's father's father i.e., father, grandfather, etc., is termed as ancestral property. Implying that property inherited from mother, grandmother, uncle and even brother is not ancestral property. “Unobstructible heritage” is used in the sense that the son, grandson and great-grandson obtain ownership by virtue of their being sons or grandsons in the ancestral wealth. The Hindu Succession

(Amendment) Act, 2005 rectified the coparcenary status of daughters in the Joint Hindu family, granting them equal rights as that of birthright. In Vineeta Sharma vs Rakesh Sharma (2020) 9 SCC 1, a landmark judgment , on August 11, 2020, the Supreme Court held that daughters will have coparcenary rights on their father’s property, even if the latter died before the Hindu Succession (Amendment) Act, 2005, became effective. 

This was a significant judgment that cleared all ambiguity regarding the birthright of daughters as coparceners.

* Student of Final Year B.A.LL.B , Panjab University, Regional Centre , Hoshiarpur