One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.
Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.
TL;DR: Sons cannot independently claim their father's inherited share in a grandfather's self-acquired property while the father is alive. But if the father has deserted his wife without maintenance, she can seek a maintenance order — and that can put pressure on him before he disposes of his share. A well-planned legal strategy often opens doors that a simple demand cannot.
Arjun Deshmukh and his two brothers were desperate. Their grandfather, Late Shri Raghunath Deshmukh, had owned a sizeable residential plot in Nagpur, purchased entirely from his own earnings. He died in February 2019 without leaving a will. The property passed to his three children — Vijay (Arjun's father), Prakash (the elder uncle), and Anjali (the aunt). Vijay is a retired police officer who had walked out on his wife Sunita nearly eighteen years ago. No divorce ever happened. Sunita, with no income of her own, was cared for by the three sons.
In early 2025, the siblings decided to sell the plot and split the proceeds. Vijay made it clear he would take his entire one-third share and keep it. Arjun first consulted a local lawyer, who told him flatly: as a grandson, you have no right to your father's share while he lives. Dejected, the family felt cornered.
Then Arjun approached the Chamber of Advocate Sudhir Rao. The office looked beyond the obvious. The sons' direct claim was weak, sure. But Sunita had a powerful, undischarged right — maintenance from her estranged husband. And a deserted wife's maintenance claim can be used to restrain her husband from alienating property. Advocate Sudhir Rao and his office argued that sending a demand notice followed by an injunction application under Order 39 Rule 1 CPC would change the negotiation. It did. A suit for maintenance was filed, combined with a prayer to freeze Vijay's share until he provided for his wife. The court granted an interim status quo. Within weeks, a settlement was reached: Vijay agreed to transfer half his share to Sunita and the remainder to be held in trust for the sons. A crisis became a resolution — precisely because the legal approach was calibrated to the real equities, not a textbook reading of inheritance rights.
Key Facts of the Case
- The property was the grandfather's self-acquired asset, not ancestral.
- Grandfather died intestate in 2019; his three children (two sons, one daughter) became equal Class I heirs under the Hindu Succession Act, 1956.
- The father, a retired policeman, had deserted his wife and three sons for over 18 years but never obtained a divorce.
- The sons had no direct right to force their father to hand over his share — but their mother had an independent claim for maintenance against him.
- A simple inheritance-only approach would have left the family empty-handed.
- The breakthrough came when the mother's maintenance rights were pressed in the same suit, combined with an injunction to prevent the father from selling his portion.
- The matter settled after the court ordered status quo on the property.
The Direct Legal Answer
When a grandfather owns self-acquired property and dies without a will, his sons and daughter inherit equally. Their shares don't automatically become ancestral or coparcenary property for the next generation. So the father — here, Vijay — was free to take his one-third and spend or sell it. The grandsons had no enforceable claim to that share during his lifetime.
Can the three sons get the father's share directly?
No. Under the Hindu Succession Act, a grandson gets no birthright over a father's share in property inherited from a grandfather who acquired it himself. The father's share is his separate property. He can decide whether to give it to his sons or not.
What about the mother's rights?
Here's where the law provides a strong remedy. A wife who has been deserted and left without maintenance can file a case against her husband under Section 18 of the Hindu Adoption and Maintenance Act, 1956. She can also seek maintenance under Section 125 of the Code of Criminal Procedure, 1973 (now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023). The court can order the husband to pay a monthly sum — and if he tries to dispose of property to avoid payment, an injunction can be obtained. That's exactly what turned the case.
Is the father's pension or retirement money automatically payable to the mother or sons?
No, retirement benefits are the sole earnings of the retiree. There's no automatic share to a spouse or children. But if a wife files for maintenance, the court will consider the husband's income sources — including pension — when fixing the maintenance amount.
Advice in Such Cases
When a family is split like this, pure inheritance logic doesn't always hold the key. You need to look at the whole picture. The sons alone had no legal weapon. But the mother did. That shift in strategy changed everything.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Don't just ask whether you can claim property. Ask whether anyone in the family has a right the other side fears — like a deserted wife's maintenance. That can create leverage. And don't assume you're helpless if you don't own the property yourself. Sometimes the strongest hand belongs to the person holding the maintenance card.
This type of matter demands an advocate who routinely handles both succession and matrimonial civil disputes. General practitioners often focus narrowly on the partition suit and miss the potent maintenance angle that can truly move a stubborn defendant.
Applicable Sections of Law
For the property claim, the Hindu Succession Act, 1956 is the starting point. Section 8 lays down the general rules of succession for a male Hindu dying intestate, and Section 10 governs distribution among Class I heirs. The property being self-acquired, the grandfather's sons and daughter took equal shares.
On the maintenance front, Section 18 of the Hindu Adoption and Maintenance Act, 1956 gives a wife the right to be maintained by her husband during her lifetime. Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (replacing the old Section 125 CrPC) provides a summary remedy for a wife unable to maintain herself. Order 39 Rule 1 of the Civil Procedure Code empowers a court to grant a temporary injunction to prevent disposal of property that might defeat a claimant's right — that was the vital interim measure here.
Jurisdiction — Where to File the Case
A suit for partition and maintenance is filed in the civil court of the district where the property is situated or where the defendant resides. If the value of the property is below the pecuniary limit of the District Judge, it goes to the Senior Civil Judge's court. For Nagpur property, the appropriate court was the District Court, Nagpur.
The maintenance petition under Section 144 BNSS can be filed in the court of the Judicial Magistrate First Class in the area where the wife resides or where the husband resides. Jurisdiction matters because a misjudgment here can lead to the case being returned or delayed. The choice of forum also influences the pace and the reliefs available — civil courts offer broader injunctive relief, while magistrates can grant an immediate maintenance order.
Limitation Period
A suit for partition among co-owners is not governed by a specific limitation period as long as the plaintiff is in joint possession. But a suit for maintenance arrears has a three-year limitation under the Limitation Act, 1963. That means the wife can only claim arrears for the three years immediately before filing. Condonation of delay is possible only if the court is satisfied with the reasons — so it's crucial to act before the clock runs out on those past dues. Missing the limitation on maintenance arrears can permanently bar a significant part of the claim.
Interim Reliefs Available
In a civil suit for maintenance and partition, the most critical early relief is a temporary injunction under Order 39 Rule 1 CPC. This can stop the defendant from selling, transferring, or encumbering the property while the case is pending. Here, that relief ensured the father could not alienate his share before the court decided the mother's claim.
A court can also grant an attachment before judgment under Order 38 CPC if there is an apprehension that the defendant will dispose of the property to defeat the claim. In rare cases, a receiver may be appointed. Obtaining an early injunction is often the difference between a meaningful victory and a hollow one — without it, the property can vanish before the final decree.
If You Are the Victim
- Do not confront the father aggressively — it may prompt him to rush the sale.
- Identify every possible legal right within the family. Here, the mother's maintenance claim was the hidden lever.
- Preserve all evidence of the father's desertion and failure to maintain — dates, messages, bank statements showing she had no support.
- Move quickly for an injunction; delaying even a few weeks can mean the property is sold and the money disappears.
- Engage a lawyer who understands both property and family law, not just one piece of the puzzle.
Documents You Must Keep Ready
- Death certificate of the grandfather, proving succession opened.
- Legal heir certificate or succession certificate showing the three children as heirs.
- Sale deed or title documents of the property in the grandfather's name.
- Identity proofs of the mother and the sons (Aadhaar, PAN).
- Any record showing the father's desertion — school records showing mother as sole caregiver, ration card, utility bills.
- Pension details of the father, to establish his financial capacity.
- Photographs or communications that show the mother is living separately without support.
- Bank statements of the mother showing no financial assistance from the husband.
What Evidence Is Required?
- Original property documents proving the grandfather's exclusive ownership — a key factor to confirm it was self-acquired, not ancestral.
- The grandfather's death certificate and family tree to establish the class of heirs.
- Witness affidavits from neighbours or relatives confirming the father abandoned the wife years ago.
- Any written communication (letters, emails, messages) from the father indicating his refusal to maintain her.
- Financial records showing the mother's nil or negligible income.
- The father's pension statement or bank statements — often obtainable through discovery in civil proceedings.
- Certified copies of any previous police complaint or mediation record, if one exists.
How Courts Typically Approach Such Cases
Civil courts dealing with a combined claim of inheritance and maintenance look at the larger family picture. They don't view the property share in isolation. Judges are often sympathetic to a deserted wife's plea, especially when the husband holds a secured government pension. The mere existence of a maintenance suit with an injunction prayer can shift the playing field dramatically. Courts are reluctant to see a lawful claimant left penniless while the spouse enjoys property proceeds. But the court also won't rewrite succession law: it won't hand the sons a direct property right where none exists. Instead, it uses maintenance jurisdiction to achieve a fair result. That nuance — using one right to secure another — is where the strategy lies.
Timeline of Legal Process
- Consultation and drafting: 1–2 weeks to gather documents and send a legal notice.
- Filing the suit: Plaint for maintenance and injunction filed, along with interim application under Order 39 Rule 1 CPC.
- Interim order: Court may grant status quo or temporary injunction within a few weeks if urgency is shown.
- Summons and written statement: Issued to defendants; they typically get 30 days to file their reply, extendable.
- Issues framing and evidence: 2–6 months depending on the court's docket.
- Trial and argument: Could take 12–18 months or more in a busy district court.
- Judgment: Final decree on maintenance and the property, with executable directions.
- Settlement possibility: In many cases like this, a strong interim order forces the other side to negotiate — settlement can happen within 3–6 months.
Understanding the Costs
The total cost of a matter like this varies significantly from one case to the next — it depends on the complexity of the dispute, the forum involved, the number of hearings, and the specific facts of your situation. There is no single fixed figure that applies to everyone.
A professional advocate can give you an accurate estimate only after reviewing all your facts and documents in a consultation.
Can the Matter Be Settled Out of Court?
Yes, and it often should be. Mediation and conciliation can resolve these family disputes without the acrimony of a full trial. Civil courts routinely refer parties to mediation under Section 89 CPC, especially when maintenance and property are intertwined. In this matter, the interim injunction effectively brought the father to the negotiating table, and a settlement was reached within a few weeks. A compromise deed, properly stamped and registered, can record the transfer of a share to the mother and the creation of a trust for the sons. That avoids years of litigation. Lok Adalats are also available for pending cases, but here the swift private settlement worked better. When both sides see a tough legal road ahead, a well-structured out-of-court settlement is the most intelligent resolution.
Common Mistakes People Make
- Assuming that a son always has a birthright in any property that once belonged to a grandfather — the distinction between ancestral and self-acquired is often missed, leading to baseless claims and wasted legal costs.
- Waiting too long to act. If the father sells the property before an injunction is filed, tracing and recovering the money becomes far harder.
- Failing to identify all possible claims. Many families think only about inheritance, ignoring the potent maintenance weapon a deserted wife holds.
- Engaging an advocate who does not regularly handle cross-domain matters like property plus family law maintenance. A narrow approach may win on succession but lose the chance to freeze assets at the critical moment.
- Confronting the father angrily or sending unguided legal threats that prompt him to sell the property in haste before any court order can be obtained.
- Destroying or overlooking old records — sometimes a simple ration card or a school admission form with the mother listed as sole guardian is what establishes desertion.
FAQs People Normally Have
Is a grandfather's self-bought property ancestral for grandchildren?
No. For it to be ancestral, the property must have been inherited by the grandfather from his own father and passed down undivided through four generations. A self-acquired property never becomes ancestral in the hands of the next generation inheriting it under intestacy.
Can a son demand partition of his father's own property during the father's lifetime?
If the property is the father's self-acquired property, the son has no right to demand partition while the father is alive. The father can dispose of it as he likes. A son's birthright applies only to ancestral coparcenary property.
What if the father refuses to pay maintenance despite a court order?
The wife can execute the maintenance order through attachment of the father's pension or bank accounts. Wilful non-compliance can also lead to a contempt petition and coercive processes.
Is there any way the sons can block the sale of their grandfather's property?
If the sons themselves have no legal right, they cannot block the sale directly. But if the mother files a maintenance suit and obtains an injunction based on her claim, the sale of the father's share can be frozen until her right is decided. That's the practical route — using the mother's standing, not the sons'.
This article is general legal information, not legal advice. Consult a qualified advocate about your specific situation.
Advocate Sudhir Rao, Supreme Court of India