A family’s own plaint, which said the father got the land in partition from his own father, undid their claim to a share in it during his lifetime. The Madhya Pradesh High Court has held that after the Hindu Succession Act there is no Birth Right In Ancestral Property and a son takes a share only after his father’s death.
Gwalior: Land that a man receives in partition from his own father becomes his self-acquired property, and after the Hindu Succession Act, 1956 came into force the theory of birth right no longer exists, the Madhya Pradesh High Court at Gwalior has held while dismissing a second appeal by a wife and her two sons who sought to restrain the husband and father from selling land in Guna district [Prembai and Others v. Ramswaroop and Others].
Justice Ashish Shroti delivered the order on October 26, 2026 in Second Appeal No. 264 of 2015, after reserving it on October 16, 2026.
Why birth right no longer exists
On the wife, the Court held that she could not be treated as a coparcener. For the sons, it turned to Section 4 of the 1956 Act, which gives the Act overriding effect over earlier Hindu law and custom, and to the ruling in Uttam v. Saubhag Singh, as followed by a coordinate bench in Govardhan and Others v. Ramvati Bai and Others.
“It is thus clear that after coming into force of the Hindu Succession Act, the theory of birth right does not exist, and son gets share in the property only after death of his father. It is only when the coparcener was born prior to coming into force of Hindu Succession Act, the property will devolve by survivorship upon the surviving members of the coparcenary vide Section 6.”
Its reasoning was that on the death of an ancestor after the Act, a partition is deemed to take place by operation of law immediately before his death, the property ceases to be joint family property, and the successors hold it as tenants-in-common and not as joint family members.
What the plaint said
The Court then turned to the plaint, in which the plaintiffs had themselves stated that the father got the suit land in partition from his own father.
“Meaning thereby, the property was received by defendant no.1 and became his self-acquired property on partition. Consequently, during the lifetime of father i.e. defendant no.1, the plaintiffs could not have claimed any share in the property. The view of the learned appellate court that the suit property is not the coparcenary property of plaintiffs, is thus upheld, though for different reasons stated above.”
Land in Guna and the family’s suit
The case concerned about 5.908 hectares of land spread over 13 survey numbers in village Baskhedi, Guna district. It was not in dispute that the land was ancestral property in the hands of the first defendant, who is the husband of the first plaintiff and father of the other two plaintiffs.
The family had sued for a declaration of title and possession and a permanent injunction, claiming that on July 21, 2010 he had threatened to sell the land and give them no share. Their case was that, the property being ancestral, they had a right in it from birth and he could not sell it.
While the suit was pending, part of the land was sold to the third defendant through a sale deed dated April 20, 2011. The plaintiffs amended the plaint, added the buyer as a party and sought a declaration that the sale deed was null and void.
The Fourth Civil Judge Class-I, Guna dismissed the suit on May 17, 2012 in Civil Suit No. 52A of 2010. The First Additional District Judge, Guna affirmed that decision on May 16, 2015 in Civil Appeal No. 52-A of 2014, after which the family moved the High Court.
The appellants’ fallback
Advocate Ashish Shrivastava, for the appellants, accepted that the family might not be able to claim a share during the father’s lifetime, but argued that the father could not sell the land in a manner that defeated their right to inherit it after his death. Government Advocate Rajendra Jain appeared for the State.
Appeal dismissed
“Consequently, this Court does not find any illegality in the judgment and decree passed by the Appellate Court, the same is, accordingly upheld. The appeal is found to be devoid of any substantial question of law and is accordingly, dismissed.”
Why the judgment matters
Family property disputes in rural India often begin with a son or wife trying to block a sale by the head of the family on the footing that the land is ancestral. The ruling restates that, after the 1956 Act, land received by a man in partition is his own property, and that his sons acquire a share only on his death and not by birth.
It also shows how a party’s own pleadings can decide the outcome: the plaint’s statement that the father received the land in partition was enough for the Court to treat it as his self-acquired property. The appellate court’s finding was upheld on this different reasoning, and the second appeal failed for want of any substantial question of law.
Case Title: Prembai and Others v. Ramswaroop and Others
Case No.: Second Appeal No. 264 of 2015
Bench: Justice Ashish Shroti, Madhya Pradesh High Court at Gwalior
Date of Order: October 26, 2026 (reserved on October 16, 2026)
Appearances: Advocate Ashish Shrivastava for the appellants; Government Advocate Rajendra Jain for respondent no. 2/State