Ancestral Property

What is Ancestral Property:-

Property inherited up to four generations of male lineage, which means father, grandfather, great grandfather and great-great grandfather is called ancestral property. It should have remained undivided till the fourth generation upwards.

Unlike other forms of inheritance, where inheritance opens only on the death of the owner, any right to a share in such a property accrues by birth itself. Any property divided through a partition deed, family settlement etc. loses its ancestral character. This law has been settled in catena of judgments. In the year 2016, the Hon’ble Supreme delivered one judgment in which the Hon’ble Court held that any property which has been previously partitioned or which has been distributed in accordance with Section 8 of the Hindu Succession Act, 1956, on principles of intestacy, ceases to joint family property and no suit for partition can lied in respect to such property.

Another Law on Ancestral Property is that the property inherited through Will and Gift are not the ancestral property. For a property to come in the category of Ancestral Property, should be inherited up to the four generation of male lineage.

Important & common question that arises in today’s life are:

Whether a father can give property to one son? And

Whether other children can claim the Ancestral Property?

Whether daughter has any right in the Ancestral Property?

  1. Let’s consider these Aspects/Questions according to the prevalent Law.

Coming to the First question that Can a father give his property to one son? A father has a right to deal with his property but in accordance with law. If the property is self acquired i.e. the property has been purchased by himself and its not the ancestral property, then he is free to use that property whichever way he wants as his children have no right to claim but in case, father dies without disposing of the property, without leaving a will behind, then all his legal heirs will have the right to claim such property.

Now if such property is Ancestral Property, he cannot deal with it freely as all his children have a share in that property and his sons can claim property and partition of same. As per the latest law settled by the Hon’ble Supreme Court of India, daughters can also claim right in such property.

It is to be noted here that when a Hindu dies intestate, his property devolves as per Section 8 of the Hindu Succession Act and such property which comes in the hands of legal heir becomes his Self Acquired Property.

2. Accordingly, the answer to the above second question is in affirmative. Yes other children do have the right to claim his interest in property being the ancestral property as it cannot be devolve upon only on one child/son.

Supreme Court Judgments on Ancestral property/on points discussed above:

2018(2) R.C.R.(Civil) 944

SUPREME COURT OF INDIA

Ancestral Property – Concept of – Any property inherited up to four generations of male lineage from father, father’s father or father’s father’s father is termed as ancestral property – Property inherited from mother, grandmother, uncle and even brother is not ancestral property – In ancestral property , right of property accrues to coparcener on birth.

2008(2) R.C.R.(Civil) 99

SUPREME COURT OF INDIA

Hindu Succession Act, 1956, Sections 8 and 19 – Ancestral Property – Death of Hindu male in the year 1972 – Property inherited by his son “A” and three daughters – Property was partitioned by all the four in equal shares – Property thus lost the character of ancestral property in terms of Section 8 of Hindu Succession Act – Son of “A” born in the year 1977 acquired no interest in property by birth. “A” entitled to alienate the property

2004(1) R.C.R.(Civil) 316

SUPREME COURT OF INDIA

Hindu Law – Ancestral property – Gift of ancestral property – The father can make a gift within reasonable limits of ancestral immovable property to his daughter as a part of his moral obligation – What is the reasonable extent, would depend upon facts of each case, extent of property held by the family and number of daughters – It will be a fact to be pleaded and proved by the person who alleges the extent to be unreasonable – In the absence of such pleadings, the plea cannot be considered – Gift of 1/26th share of 3.16 acres of land cannot be held unreasonable.

SUPREME COURT OF INDIA

Indu Malhotra and Sanjiv Khanna, JJ.

Decided: 2019

Hindu Succession Act, 1956 Section 5 (ii) Primogeniture succession – Impartible estate – Estate inherited and ancestral , partition of which is prohibited by custom and succession thereto is by rule of primogeniture is impartible estate – Such estate is not held by coparcenary as part of coparcenary property as coparcener – Members of joint Hindu family do not have right to partition or right to restrain alienation.

3. Let’s come to the third question that whether daughter has any right in the ancestral property?

Property Rights of Women as per Hindu Succession Act - Nri Help Info

This question has been answered by the Hon’ble Supreme Court recently i.e. in the year 2020 after discussing every aspect of law in this regard.

2020(3) R.C.R.(Civil) 473

SUPREME COURT OF INDIA

Arun Mishra, S. Abdul Nazeer and M.R. Shah, JJ.

Decided: 2020

Hindu Successions Act, 1956, Section 6 – Daughters right in coparcenary property after substitution of section 6 of the Hindu Succession Act, 1956 by Amendment of 2005 – Reference before bench of Supreme Court answered as under:

(i) The provisions contained in substituted section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

Note: Author is practicing advocate in Punjab and Haryana High Court at Chandigarh

Also Read: Special Power of Attorney and Sale of Property

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