• Grand daughter's right in the property of grandfather

I am fighting a divorce petition with my husband who runs a chemist business but has now sold his share to his father in order to show that he has no income and escape maintenance and alimony. My father-in- law has a well constructed house in his name, the title of which has tricked down to him from his father who acquired it. I have a minor daughter. I want to know whether my daughter has a claim in the said house as it is a ancestral house and i am of the view that my husband and father in law are trying to dispose off the property in order to escape giving my child's share in it. Can I file a case staking my child's claim and obtain a stay order restraining my in-laws in disposing off the property.  Plz help....
Asked 10 months ago in Property Law from ambala, Haryana
Religion: Hindu
1. The legal definition of ancestral property is different and the said property is not ancestral property,

2. Neither you nor your daughter has any right on the properties of your FIL or husband during their life times,

3. However,  as per Supreme Court Judgment, the Husband is bound to  maintain his wife and children by begging or borrowing,

4. It is also well settled proposition of law that from the earnings derived from the properties sold, the husband is bound to maintain his wife and children,

5. Your filing case claiming share of your FIL's house will not yield any result and will waste your money and time.
Krishna Kishore Ganguly
Advocate, Kolkata
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The alienation made by him can be challenged on the ground that it has been made to defeat your rights in the property and thus should be declared as illegal. During the lifetime of your husband neither you nor your daughter has the right to claim a share therein. Succession will not survive to your daughter unless the sale is set aside as illegal by the court. A stay order can also be sought to restrain them from selling the property to create third party rights.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) how did property devolve  on your father in law 

2) was it by will of grandfather in law  

3) it would be self acquired property of your father in law 

4)your daughter would not have any share in the property 

5) court would not grant any stay regarding sale of property by father in law property 

6) your husband is bound to pay maintenance for your and your child . He cannot run away from his responsibilities . Even if he is unemployed he has to pay maintenance 

Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
I want to know whether my daughter has a claim in the said house as it is a ancestral house and i am of the view that my husband and father in law are trying to dispose off the property in order to escape giving my child's share in it. Can I file a case staking my child's claim and obtain a stay order restraining my in-laws in disposing off the property.

First of all ascertain that the property in question is ancestral in nature. You sy that your husband has sold his share of property to his father.  How did your husband acquire that property and whether this was his share of property out of his father's share in his ancestral property.  Just because the property belonged to the grandfather of your husband, it cannot be considered as ancestral property. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor. Properties inherited from mother, grandmother, uncle and even brother is not ancestral property.
Therefore confirm how this becomes ancestral property and whether your daughter has really a right in the said property , even if she has, it can be out of her father's share only and not in commonly held properties. 
Instead you file a suit for creating a charge on the properties held by your husband's father stating that he has a share in it and this charge is meant for the maintenance amount he has been ordered to pay by a competent court of law  towards maintenance amount to you as well as to your minor daughter. that way you can obtain an injunction too seeking direction to restrain your father in law and your husband from alienating the property. 
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
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Husband is bound by law to maintain his wife and children even when he has no source of income. It is presumed by law that husband is bread earner of the family. It does not matter that he sold his properties and business to other person. It is an act of escaping from responsibility which cannot be taken as defence. 

You should file complaint u/s 125 crpc and u/s 18/19/22 DV Act for compensation. Stopping monetary assistance to wife and children is an act of domestic violence. Daughter has right as equal as a son in ancestral property but she cannot claim it now because her grand father is alive and she is minor. If grand father or father tries to alienate it she has right to prevent such alienation and demand partition. You can file suit on her behalf as her next friend.   
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
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Neither you nor your daughter has any right in the property of your father-in-law, so there is no question of stay being granted. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
you cannot obtain stay order restraining your father in law from selling the property . It is not ancestral property 
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1. Your father in law is the absolute owner of the said property,

2. Neither your husband nor your daughter has any right, claim and interest on your FIL's said property,

3. There is no ground on your part to seek a stay order restraining your FIL to sell his property. 
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
As Stated earlier, the ancestral and the rights therein are determined per stripes and not per capita.  
Now this cannot be considered as ancestral property because the property that belonged to your husband's grandfather already underwent a process of transfer to his wife, next it was transferred to your  husband's father.  Moreover your father in law has one brother, so the property= was duly partitioned among the brothers, therefor the ancestral nature extinguished.
Instead of disputing the issue with a non-existent issue namely 'ancestral property', better file a maintenance case for the minor and create a charge over the properties of the father of the child even his undivided share out of his father's share of property Do not be misguided by some false promises or misconceptions.
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0

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