Can younger brother claim property gifted before his birth?

Advocate Aparna Kanampalli Answered: 03 Aug 2025

According to me, the question is incomplete. Two brothers, elder brother got the property transferred to his name before the birth of the younger brother. There are no facts as to whether the property was inherited by the father, or is it a self earned property. or whether the property was in the name of the father or the mother? how did the property devolve. how was the property transferred? whether there was execution of any type of deed in the name of the elder brother, and that the same is registered to his name or not? and without knowing anything, just beating around the bush, and speaking in air would not help, Need to know all the details, before giving you a proper opinion. Please contact your lawyer with all the relevant documents and details, for a legal solution

Advocate Ayantika Mondal Answered: 11 Jul 2025

Dear Client, Yes. Though the disputed property has been willed to the elder sibling, the younger brother has every right to dispute the will. The court will, after considering the necessary facts and applicable laws, decide on whether the younger brother’s claim on property is substantiate. I hope this answer helps. In case of future queries, please feel free to contact us. Thank you.

Advocate Ishan Ganguly Answered: 07 Jul 2025

upon a judgment of a Honourable Division Bench of Karnataka High Court in the case of Sri M.S.Subbukrishna and others vs Smt.Parvathi and another reported in ILR-2007- KAR-3939, wherein, A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.

Advocate Sristi Nimodia Answered: 01 Jul 2025

If the transfer was via a valid sale deed, gift deed, or will, and no interest was explicitly created for the unborn younger child, the property becomes the older son's self-acquired asset, precluding the younger son's claim. Under the Transfer of Property Act, 1882, Section 13 generally restricts direct transfers to unborn persons, but Section 20 allows for creating a vested interest upon birth if the deed indicates such an intention. The Supreme Court's ruling in F.M. Devaru Ganapati Bhat v. Prabhakar Ganapathi Bhat affirmed this. Therefore, the younger son can only claim the property if the transfer deed to the elder son clearly shows an intention to create an interest in his favor.

Advocate By LEAD INDIA Answered: 30 Jun 2025

If the parents legally transferred the property to the elder brother before the younger was born, the younger usually can claim a share. However, if the transfer was not legal or valid, he can also challenge it in court. It is best to get the documents checked by a property lawyer and explore filing a partition suit. For further legal assistance contact us on our helpline number.