Alienability of Property:
Simply because the property is impartible, it does not make it inalienable. So the holder for the time being has power to alienate the estate by gift or by will, unless the power of alienation is executed by some special custom or the nature of the tenure. In case where the impartible estate is by custom inalienable the holder can alienate it only in case of legal necessity.
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ADVERTISEMENTS:
Right to maintenance:
No coparcener has any right in an Impartible estate. Apart from custom and relationship to the holder, the junior members of the family have no right to maintenance out of estates.
Where an impartible estate is held as ancestral or joint family property, the sons of the holder thereof are entitled, by custom to maintenance out of the estate. The custom has been judicially recognised and does not require any proof.
But where the impartible property is the self-acquired property of the holder, his son is entitled to maintenance out of it.
ADVERTISEMENTS:
The members of the family beyond the first generation from last holder cannot claim maintenance as a matter of right except where such custom prevails.
Rule of devolution of impartible property:
(1) Where the impartible estate is ancestral and the last owner is undivided the property devolves according to the rule of survivorship. The estates passes by survivorship from one line to another according to primogeniture, and devolve not on the members nearest in blood, but on the eldest member of the senior branch.
(2) A female cannot inherit an impartible ancestral estate belonging to a joint family where there are qualified male members to succeed to the estate unless the custom allows so. But where she is the widow of the last survivor she succeeds according to the law of succession which applies to separate properties.
ADVERTISEMENTS:
S3 being the surviving member of the senior line is entitled to succeed in preference to L3 though L is one decree nearer to the common ancestor A than S3 [Baijnath v. Tej Bai Singh, (1921), 481.A. 195: 48 Alld. 228: 601.C. 524; (22) A.P.C. 62],
(3)Where the impartible estate is ancestral but the last holder was separate from other members the estate will descend according to the ordinary rules of succession applicable to partible property. Thus if the last holder dies without leaving a male issue but leaving a widow, the estate will pass to the widow, and if there be no widow, to his daughters.
If there be none of these, the estate will descend according to the rule of primogeniture.
The burden of proof lies upon that person to prove the exclusion of female from inheritance who sets up such custom.
Where the impartible estate is self-acquired property the estate follows the course of succession as to separate property though the last order was undivided at the time of his death.
In Dayabhaga School, the heir will be the eldest member of the class of persons which is near of kin to the last owner than any other class.