Under the Mitakshara Law, each son, upon his birth, takes an interest, equal to that of his father, in ancestral property, whether such property is movable or immovable. This right of the son in ancestral property is totally independent of his father. It is to be remembered that he does not claim through his father, but independently of him.
Therefore, a transfer by a father of his own interest in the coparcenary property (where such a transfer is allowed by law) does not affect the interest of the son in the property. After the 2005 Amendment of the Hindu Succession Act, a daughter also has the same rights in the coparcenary property as the son.
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A father, however, has a special power of disposal of ancestral property in the following three cases, viz.:
1. Gift by the father of ancestral movable property:
Under the Mitakshara Law, sons (and after the 2005 Amendment, the daughters) acquire, by birth, rights in ancestral property, equal to those of the father, in both movable and immovable property. Nevertheless, the father can make gifts of ancestral movable property, within reasonable limits, without the consent of his son or daughter for the purpose of performing “indispensable act of duty and for purposes prescribed by the texts of law, as gifts through affection, support of the family, relief from distress, and so on.” (Chapter I, Mitakshara)
Such a gift of affection can be made by the father to his wife, daughter or son. However, what is most important is that it should be of movable property only and it should be within reasonable limits. Thus, the Bombay High Court has held that a gift of the whole, or almost the whole, of the ancestral movable property to one son (to the exclusion of all other sons) cannot be said to be within reasonable limits. (Lakshman v. Ramchandra, 5 Bom. 48)
2. Gift by the father or other managing member of ancestral immovable property:
A Hindu father or other managing member of the family has power to make a gift of ancestral immovable property within reasonable limits, for pious purposes only. Such an alienation cannot, however, be made under a will.
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Any other member of the joint family does not have a similar power, and such a member cannot dispose of by will any portion of the property for charitable purposes, even if it is a very small portion. (Jawaharlal v. Shri Thakur Radha, 1945 All. 177)
In the words of the Supreme Court, “We see no reason to extend the scope of the words ‘pious purposes’ beyond what has already been done ” With this observation, the Supreme Court rejected the contention that a husband could make any such gift of ancestral property to his wife on the principle of ‘pious purposes.’ (Perumalakkal v. Kumaresan, A.I.R. 1967 S.C. 569)
3. Sale or mortgage of coparcenary property by the father for payment of ancestral debts:
The father of a joint Hindu family had the power to sell or mortgage the family property (including the son’s interest therein) to discharge a debt contracted by him for his own personal benefit. Such an alienation would bind the sons, provided two conditions are satisfied, -wiz., (i) the debt was antecedent to the alienation; and (ii) the debt was not incurred for an immoral purpose.
The validity of such an alienation rested upon the principle of Hindu Law that it was the pious duty of the son to discharge his father’s debt, if such debt was not tainted with immorality. (This doctrine of pious duty or pious obligation has now been nullified by the 2005 Amendment of the Hindu Succession Act.)