Not all family properties are ancestral: Son has no birthright in father’s self-acquired assets

Recently, there was a case in the Kerala High Court where the court ruled that if a Hindu man gets a property from division of ancestral land, even if it’s considered self-acquired, the moment he has a son, that property transforms into a a co-parcenary property shared with his son.

However, the high court clarified that if the original property was self-acquired by the male Hindu, then the son does not automatically gain rights to it by birth and the father can still sale or give away the self-acquired property as he wishes.

In simple terms, this means a son has a birthright to a property only if it comes from an ancestral source, not if it is entirely self-acquired from the start.


This judgement came about because of a case filed by a son, who was alienated (cut off) from his father’s land by his mother. The mother had executed a Will that distributed the land to five family members. This is why the the son felt wronged and took the case to court.

The son lost the case as this property (46 cents) was held as self-acquired property and not ancestral joint property. Because it was classified as a self-acquired property of the father, the court upheld his decision to gift this land to his mother. Consequently, the mother’s Will giving this land to the other family members was also upheld by the high court.

The Kerala High Court had said that when a Hindu male passes away after the commencement of the Hindu Succession Act, 1956, any self-acquired property that goes to his son as a class I heir is held by him in his individual capacity, not as a coparcenary along with his children.

Also read: No inheritance for mother under Indian Succession Act if son dies without creating a Will and is survived by his wife and children

Why did the son lose the case?

Navod Prasannan, Partner, King Stubb & Kasiva, Advocates and Attorneys, explained to ET Wealth Online that the primary reason the son lost that case is because he could not prove that the property was ancestral.

Prasannan says that the court found that the grandfather had purchased the property himself, making it self-acquired. The father later received his share in the property through a partition after 1956 and also obtained a portion through a release deed from his sister, both of which were treated as his separate property.

Prasannan says: “Since the property in the father’s hands was self-acquired, the son had no birthright in it and was not a coparcener.”

The father was therefore legally entitled to gift the entire property to his wife, and the subsequent Will in favour of the other heirs was valid. The son’s earlier conduct, where he treated his mother as absolute owner for mortgage purposes, also weakened his claim and supported the Court’s finding against him.

Also read: Can a mother cut a son out of her Will? Kerala HC backs mother who inherited 46 cents of land from her husband and denied son a share

What should joint families learn to avoid such disputes?

According to Prasannan, the key takeaway is that not all family property is ancestral. Families must clearly identify and document whether a property is self-acquired or ancestral, because birthrights arise only in ancestral coparcenary property.

Prasannan says: “A share received in a partition does not automatically give children a right by birth unless the original property was ancestral. Self-acquired property can be freely gifted or bequeathed by the owner, and such transfers cannot be challenged by children merely on the basis of relationship.”

Proper records, clear partition deeds, and planned succession through registered gifts or Wills can prevent prolonged litigation. Prasannan also says that family members should be consistent about how they treat ownership, as prior acknowledgment of someone’s absolute title can defeat later coparcenary claims.

The court drew an important distinction between two situations

According to Prasannan, if a man receives property on partition of ancestral property, it may be treated as his separate property initially, but once he has a son, it becomes coparcenary property and the son acquires a birthright.

Prasannan says: “However, where the property is self-acquired from the outset, the son gets no birthright at all, and the father has complete freedom to dispose of it by sale, gift, or Will.”

According to Prasannan, this clarification is significant because many disputes arise from the mistaken belief that every property in a father’s name becomes joint family property on the birth of a child.

Prasannan says: “The judgment reiterates that the decisive factor is the origin of the property, not the existence of a joint family.”