Property Inherited From Maternal Grandfather Is Obstructed Heritage; No Birthright To Grandchildren: Bombay High Court
The Court held that property inherited through the maternal line does not constitute ancestral property and cannot give rise to a birthright in favour of grandchildren.
Justice Shailesh Brahme, Bombay High Court
The Bombay High Court has ruled that a granddaughter cannot claim partition in her maternal grandfather’s property during the lifetime of her mother, clarifying that such property amounts to obstructed heritage under Hindu law.
The Court observed that a birthright arises only in paternal ancestral property and not in estates devolving through the maternal side.
A Single Judge Bench of Justice Shailesh P. Brahme observed that “It is clear from the above observations that if the property is inherited from the paternal side, then and then only it can be treated to be ancestral property giving birth right to son or daughter..”
Advocate Sushant V. Dixit appeared for the applicants, while Advocate Swapnil A. Deshmukh represented the respondents.
Background
The case arose from a suit filed by the plaintiff seeking declaration, partition, possession, perpetual injunction, and mesne profits in respect of lands belonging to her maternal grandfather. The plaintiff claimed entitlement to half of her mother’s 1/8th share in the joint family property of her maternal uncles and aunts. She contended that her mother’s rightful share had been denied by her uncles, who allegedly withheld agricultural yield and attempted to create third-party interests in the property.
The defendants, including two maternal uncles, moved an application under Order VII Rule 11 of the Code of Civil Procedure, seeking rejection of the plaint on the ground that the plaintiff, being a granddaughter, had no birthright in maternal ancestral property, particularly during her mother’s lifetime. They argued that the plaintiff lacked locus standi and that the cause of action shown in the plaint was illusory.
The trial court, however, dismissed the application, observing that the issue could only be determined after a full-fledged trial. This prompted the defendants to approach the High Court in revision.
Court’s Observation
The High Court analysed Section 6 of the Hindu Succession Act, 1956 (as amended in 2005), which confers coparcenary rights on daughters by birth. Justice Brahme noted that while the plaintiff’s mother, as a daughter, had a birthright in her paternal estate, the plaintiff herself could not claim coparcenary status in her maternal grandfather’s property.
The Court distinguished between unobstructed heritage, which accrues by birth in paternal ancestral property, and obstructed heritage, where rights arise only upon the death of the owner. Citing the Supreme Court’s exposition in Vineeta Sharma v. Rakesh Sharma, the Court explained that property inherited from a maternal grandfather falls into the category of obstructed heritage, as grandchildren do not acquire an interest in it by birth.
The Court also referred to the Privy Council’s decision in Muhammad Husain Khan v. Kishva Nandan Sahai, which clarified that the doctrine of survivorship applies only to paternal ancestral property. Property devolving through the maternal line remains at the full disposal of the inheritor, who can alienate or bequeath it as the absolute owner.
Further, the Court reasoned that since the plaintiff’s mother was alive and had not instituted any action for partition, the plaintiff could not independently maintain the suit. It emphasised that “during lifetime of mother, plaintiff cannot claim any partition. It is incomprehensible as to why her mother is unable to file suit for partition and possession. Therefore, it’s a case of no cause of action.”
The Court concluded that the plaint was a case of “clever drafting” designed to camouflage the legal bar and held that allowing the trial to proceed would be an exercise in futility.
Conclusion
The High Court allowed the revision, quashed the trial court’s order, and rejected the plaint under Order VII Rule 11 CPC. The Court reiterated that property inherited from the maternal side cannot be treated as ancestral property conferring birthright, and therefore, the plaintiff had no locus to seek partition during her mother’s lifetime.
Cause Title: Vishwambhar & Anr. v. Sow Sunanda & Ors (Neutral Citation: 2025:BHC-AUG:23638)
Appearances
Applicants: Adv. Sushant V. Dixit
Respondents: Adv. Swapnil A. Deshmukh
