Our family has a 80-year-old ancestral property in Barrackpore, near Kolkata. We want to sell this property. While dividing this house (to calculate each one’s share), do we need to keep an equal share for parents as well or does the house have to be divided only among children equally? Also, who all will be entitled to a share apart from the parents, if they are entitled to it? What is the law for such a process?
We have assumed for the purpose of our response that the person who has asked the question is a Hindu governed by Mitakshara law and accordingly Hindu Mitakshara Law would apply. We have also assumed that the querist is part of a Hindu Undivided Family (HUF) that comprises your parents and siblings and that you are referring to a division of the HUF property.
Under Hindu law, HUF property is distinct from self-acquired property of an individual and is governed by the two schools of Hindu law, Mitakshara and Dayabhaga.
Under Hindu law, every coparcener is entitled to demand partition and a get a share in the HUF when partition is effected. (After the 2005 amendment to the Hindu Succession Act, 1956, daughters of a coparcener are also included as coparceners and are entitled to a share on partition.)
Wives are members of the HUF but are not coparceners and hence not entitled to seek partition but are entitled to a share in case partition takes place between the husband and sons (and now also daughters).
In the given case, the father and each of the children (including daughters after the 2005 amendment) would be the coparceners of the HUF.
Therefore, if the HUF (ancestral) property is proposed to be partitioned, then, on partition, all the coparceners and, in this case your mother, as a member, would be entitled to a share in the HUF property.
However, a coparcener can always opt not to receive her share and allocate the same to another coparcener.
If the ancestral property is not an HUF property (but property which you have inherited from any ancestor which was his self-acquired property) and it is vested in you absolutely, you may deal with the property vested in you as you deem fit, during your lifetime or through your Will. You do not need to keep any share for your parents or for any other person.