A Study of Ancestral Property in India

Arryan Mohanty

Published On: March 03, 2022 at 15:40 IST

Introduction

The word ‘Property’ comes from the Latin word ‘Properietat,’ which literally means ‘Something Owned.’ When the owner of a property passes away, the property is not destroyed. The ownership is simply handed on to the legitimate heirs of the owner.

In its true sense, the property has a specific and more expansive meaning. It encompasses not just currency and the opposite material items, but also intangible rights that are regarded a source of income.

The portion of land and money that someone has at the expense of others, and it is typically to enjoy and lose certain things as he wishes, as long as he does not use them in a way that is prohibited by law.

The ocean, like the air, cannot be owned; one may admire them, but no one has any claim to them. When things are fully ours, or when everyone else is forbidden from interacting with them or bothering those who are near to them, no one but the owner, who meets this criterion, may claim to use them or to prevent him from disposing of them as he pleases.

The reason for this is that the property is regarded as a right granted to objects. Not because it was a right to use those things, but because it was a right to use those things to spread them by modifying or giving them to someone else without thinking about it, or even throwing them away.

Personal laws control the inheritance and succession of property in India. There are two categories of property in Hindu law: Joint Family Property and Separate Property. J

oint family property, also known as Coparcenary property, is divided into three categories: ancestral property, property obtained jointly by a family’s coparceners, and separate property blended into the joint family property.

The most prevalent type of joint family property is ancestral property. However, there is no separation between Muslim and Christian law. In Muslim and Christian law, ancestral property is viewed the same as self-acquired property, and there is no idea of joint family property.

The Hindu Succession Act of 1956 is the Indian legislation that oversees Hindu inheritance rules. It includes laws for the division, distribution, and inheritance of both joint and separate family property. However, the phrase “ancestral property” is not defined in the Act. The Partition Act of 1893 and the Civil Procedure Code of 1908 are two more important partition acts.

Meaning of Ancestral Property

The property inherited by a Hindu from his or her father, grandfather, or great-father through birth is referred to as ancestral property. It is essentially the ‘Undivided Property’ of a four-generation Hindu family. Ancestral property does not include property inherited from other relatives.

Property inherited from a maternal grandpa is treated as independent property rather than Ancestral Property. In the cases of Md. Hussain v. Kisheva^[1] (1937) and Maktul v. Manbhari^[2] (1938), this was confirmed (1958).

On division, the portion awarded to a coparcener loses its status as ancestral property and becomes distinct property. Property acquired from female ancestors must be treated separately as well.

After the division of a Joint Hindu Family, Ancestral Property is also known as Self-Acquired Property. This form of property is automatically obtained by next-generation persons because the term implies that it is ancestral property.

This ancestral property was passed down through three generations, or it is also known as Coparcenary property since it contains property inherited from the father and great-grandparent.

Separate Property is the second type of property recognized by Hindu law, and it is inherited by non-blood relatives.

The dictionary definition of ancestral property is

“A property received from the parents and acknowledged by the court.” It was also declared that “A property inherited from the father or grandmother is considered ancestral property.”

Claiming Ancestral Property

‘Who can obtain ancestral property?’ is an issue that raises. The Hon’ble Supreme Court held in the case of Arshnoor Singh v. Harpal Kaur^[3], that under the Mitakshara Law, whenever a male ancestor acquires any land from any of his father’s ancestors up to a few degrees above him, his legal heirs about three degrees below him receive equal rights as coparceners in property.

Women were given equal rights to their self-acquired property or ancestral property after the Hindu Succession Act was amended and enforced in 2005, however these ancestral property rights had previously been denied to women. Women and men now have equal rights to their ancestors’ land.

It was held in the case Commissioner of Wealth Tax, Kanpur & Others v. Chander Sen & Others^[4] that after the Hindu Succession Act, 1956, the standard view that on the legacy of stable property from paternal ancestors up to three degrees, automatically on HUF (Hindu Undivided Family) came into existence, no longer remained as the legal position on the sight of Section 8 of the Hindu Succession Act, 1956.

Following the revision and implementation of the Hindu Succession Act in 2005, women were permitted to enjoy their ancestral property with equal rights in the case of Yudhister v. Ashok Kumar^[5], however these ancestral property rights had not been provided to women previously. Women and men now have equal rights to their ancestors’ land.

There are several restrictions on ancestral property; for example, if the inheritance was received before 1956, it is not a HUF property.

Since a HUF (Hindu Undivided Family) existed prior to 1956, and the same HUF with its structures continues, the status of HUF (Hindu Undivided Family) continues, and members of a joint Hindu family who are coparceners give them the opportunity to a share within the HUF (Hindu Undivided Family) premises.

The following are some occurrences involving ancestral property:

• The ancestral property must be passed down through four generations, or we may say that the ancestral property must be passed down through four generations.
• The ancestral property should not be shared among the family members, and if it is, the property becomes acquired.
• When it comes to Ancestral Property, a person has rights or interests in the ownership from the moment they are born.
• The ancestral property rights are governed by per-strip property rights rather than per-capita property rights. Each generation’s part of the ancestral property is decided first, and then split for the following generation.
• Furthermore, possessions inherited from a mother, grandmother, uncle, or even a sibling are not considered ancestor properties. Property inherited through a will or a gift is not ancestral property. If ancestor property is poured into the pool of ancestor one and enjoyed in common, it might become ancestor property.
• Any property given to a son by his father cannot become an ancestor in the hands of the son due to the simple fact that he received it from his father.
• According to the Hindu Succession Amendment Act of 2005, every daughter, married or unmarried, is considered a member of her father’s HUF (Hindu Undivided Family) and can even be designated as a “Karta.”
• Later elucidation came in 2005, when the Supreme Court amended the Hindu Succession Act of 1956. Daughters now have the right to inherit ancestral property alongside their male relatives, according to the change.

Coparcener

The term ‘Coparcener’ refers to the title given to members of a Hindu joint family who have a stake in the property of the joint family. The name ‘Karta’ refers to the family’s father or oldest male coparcener, who has possession and management rights over the land. The Supreme Court has ruled in Rohit Chauhan v. Surinder Singh & Ors^[6] (2013) that coparcenary property mainly comprises of a family’s ancestral property.

The Court further defined a coparcener as someone who equally shares the inherited estate of a common ancestor with others. The term ‘Coparcenary‘ refers to a small group of members of a joint family who have a stake in the coparcenary property. The Court also described a coparcener’s portion as variable, meaning that it fluctuates with births and deaths in the coparcenary.

The court also said that a coparcener’s stake in his or her property is ‘Undivided.’ Only coparceners have legal title to ancestral property. Other members of the joint family can only make a maintenance claim. Non-coparcener members of a joint family do not have the right to claim the ancestral property since they have no interest in it.

If a coparcener is the family’s lone existing coparcener, he has a claim to the whole ancestral property of the family. He is only entitled to one portion of the property when there are several coparceners. A coparcener might collect his portion by requesting that the ancestral property be divided.

Conditions to be a Coparcener

To be a coparcener, you must meet certain requirements.

• To begin, a member must have received the ancestral property from his or her paternal ancestor in order to be a coparcener.
• The ancestral property is retained by four generations in a Hindu joint family. As a result, the second criteria are that the member must be from one of the four generations following the initial owner, who held it separately.

Rights of a Coparcener

Over ancestral property, coparceners have the following rights:

1. The ancestral property has the right of shared possession and enjoyment.
2. The right to request financial records relating to the administration of the ancestors’ property.
3. With the approval of other coparceners, the right to alienate one’s part of interest in the property.
4. Right to set aside Karta’s or any other coparcener’s alienation.
5. The ability to compel the partition or distribution of ancestral property.
6. He has the right to sell his share of the land to other coparceners.

Do daughters have a claim to their Ancestral Estate?

Section 6 of the Hindu Succession Act was amended in 2005 by The Hindu Succession (Amendment) Act. Only male descendants may be coparceners to joint family property prior to the change. Female descendants of coparceners now have the same rights and positions as male coparceners as a result of the change.

Other modifications brought by the amendment included a change in the devolution of interest in joint family property upon the death of a coparcener. Prior to the amendment, devolution was by survivor ship; however, the amendment changed it to testamentary or intestate succession. Property inherited from female ancestors, on the other hand, does not have the status of ancestral property.

Is it possible for minors and children born after the division to claim Ancestral Property?

A coparcener’s right to claim ancestral property is unaffected by their ethnicity. Thus, unless the arrangement was against the minor’s interests, a partition agreement involving a minor coparcener is nonetheless binding.

Even children who are still in the womb are entitled to inherit ancestral property. Children in the womb can be given a share of the ancestral property, and if they are not, they can ask for the division to be reopened.

Types of Ancestral Property

Acquired property from a paternal ancestor

Ancestral property is what a Hindu male inherits from his father, paternal grandparents, and so on. The individual who obtains a portion of it by birth’s children, grandkids, and great-grandchildren.

As a result, the term ancestral property is refined into a lessened property of a father from his male ancestor in the male line, and in that right, only sons are entitled, but now, girls are also entitled to a portion alongside, and equal to, their father. As a result, property obtained from other relatives would not be considered ancestral property.

Inheritance from a Maternal Grandfather’s Estate

The following two privy council judgements represent the notion of Hindu law governing property obtained from a maternal grandfather.

In Venkayamma v. Venkataraman Amma^[7], the maternal grandfather gave some property to two siblings who were living together as a joint household.

When one of them died and left a widow, the question was whether his portion of the property should go to her or to his surviving brother. The secret service committee stated that the property obtained by the brothers was a joint or communal property in their possession, and that the undivided portion of the deceased transferred to his surviving brother after his death, rather than the widow.

The privy council recently overruled the prior judgement in Mohammad Hussain Khan v. Babu Krishna Nandan Sahai^[8], stating that such land is not ancestral property. This resolution has the effect of making property obtained by a daughter’s son from his maternal grandmother his own independent property rather than ancestral property.

Women’s property or property inherited from partners

The only property that may be said to as ancestral is that which a person inherits from his father, father’s father, and so on. As a result, property inherited from a female, such as a mother, or property shared by a person from his partners, such as a brother, uncle, etc., will be his distinct property.

Amount of space provided on a partition

The paper commissioner’s distribution from the list of ancestral property complaints pertaining to his or her concerns. They get a stake in it by birth, whether they are in continuation at the time of the division or are born later.

In the case of other relatives, such a share is a distinct asset, and if the coparcener dies without leaving any offspring, it will pass to his successors by continuation.

A paternal ancestor’s property was given to him as a gift or as a source of pleasure.

When a Hindu gives his son his own self-acquired or separate property or leaves it to him in his will, the question of whether the property is the son’s separate property or if it belongs to his ancestors arises.

This question was handled differently by many High Courts, resulting in a significant diversity of judicial opinion on the matter. In Arunachala Mudaliar v. Muruganantha^[9], the Supreme Court has now announced its position on this issue.

The Court stated that it is impossible to presume that such property should be placed in the hands of that management as ancestral property in all instances. Instead, it should be clear that the giving meant for the present to be taken directly by the giver or that the gift belonged to the family bench.

As a result of the Supreme Court’s ruling, it is evident that there is no method of thinking; it is a true question in each case, with choices made after taking into account all of the facts.

Partition of Ancestral Property

Any coparcener’s unambiguous determination to split the ancestral property causes partition.

Partitioning styles

1. A coparcener can demand division in one of the following ways:
2. Suit-based partition
3. Arbitration-based partition
4. Family settlement partition
5. A partition deed is used to divide land.
6. Partition by mutual consent

Partitioning of ancestors’ property

In most cases, division cannot be forced on others. In a case when one or more coparceners wants partition but the others don’t, the ones who want it can take their half of the ancestral property and possess it separately, while the others remain coparceners on the remaining property.

Procedure followed in a suit for partition

Filing a civil complaint in a court with territorial or pecuniary jurisdiction is one method for dividing ancestral property. When there is a dispute or disagreement about the division of ancestral property, this approach is selected. The steps involved are as follows:

• Filing a complaint: The plaintiff must first submit a complaint in which he expresses his claims and causes of action. The document includes information such as the name of the court, the parties’ names and addresses, facts connected to the cause of action, a description of the property, the subject matter’s worth, and so on.
• Hearing: The court evaluates the merits of the case on the first day of the hearing. If the court accepts the suit, the defendants will be given a legal notice to present their views, and a new hearing date will be set.
• Plaintiff’s replication: The plaintiff must next respond to the written statement, disputing all of the claims contained therein.
• Filing of necessary papers: Both parties have the option of filing all relevant documents linked to the lawsuit in order to prove their claims.
• Framing of Issues: The court sets the subjects on which the plaintiff and defendant’s arguments, as well as the testimony of the witnesses, will be scrutinized.
• Examination of Witness: Witnesses are presented and cross-examined in front of the court.
• Final hearing: On the day of the final hearing, the plaintiff and defendant’s attorneys will argue their cases in front of the court on the issues outlined, and the court will give the final order.
• Certified copy of the final order: The court will then issue a certified copy of the final order to the parties.

Deed of partition

Another way to divide an ancestral property is to execute a partition deed, which requires the permission of all coparceners. To produce a clear split of shares in the ancestral property, a partition document is required. A partition deed must be recorded with the local sub-registrar in the region where the property is located in order to be legally legitimate. The stamp duty and registration fees must also be paid by the deed’s parties.

Partition reopening

When an ancestral property is divided, it often loses its undivided nature and becomes a distinct property. Readjustment is feasible in some circumstances if there are minor inequalities, such as when a property was left out of the division.

Coparceners can seek for reopening ancestral property that has already been partitioned in extreme instances where simple asset readjustment is not achievable. A partitioned ancestral property can be reopened under the following circumstances:

Fraud, coercion, and undue influence: In circumstances where an ancestral property was partitioned fraudulently or maliciously, the aggrieved coparcener may request that the division be reopened.

Disqualified coparcener: Once the disqualification against him is lifted, he can petition for partition reopening.

Child in the womb at the time of division: This group of coparceners can also ask for the partition to be reopened if they were not given a share.

Minor Coparcener: If the division was done in a way that was detrimental to a minor coparcener’s interests, he can suit for reopening once he reaches majority.

Liability of Ancestral Property

According to section 53 of Code of Civil Procedure, 1908, Property in the hands of a son or other descendant who is liable under Hindu law for the payment of a deceased ancestor’s debt for which a decree has been issued shall be deemed to be property of the deceased which has come into the hands of the son or other descendant as his legal representative for the purposes of sections 50 and 52.

Section 50 of CPC states that if a judgement debtor dies before the decree is fully satisfied, the holder of the decree may apply to the Court that issued it to have the decree executed against the deceased’s legal representative.

If the decree is executed against such legal representative, he shall be liable only to the extent of the deceased’s property that has come into his hands and has not been properly disposed of; and the Court executing the decree shall determine such liability.

Section 52 of CPC deals with instances in which a judgement is entered against the judgment-legal debtor’s representative (deceased).

A decree can be enforced against the deceased’s property as long as it is in the hands of a legal representative, if the decree is for the payment of money out of the deceased’s property and the decree has been passed against the party acting as the legal representative of the deceased person.

Conclusion

To summarize, ancestral property may only be claimed by coparcenary members of a Hindu joint family’s four generations who inherited it. It is also required that the property was inherited from the claimant’s paternal ancestor.

Separate property status applies to property inherited from female ancestors and maternal ancestors. There are several ways to claim a piece of the ancestral property. It might be claimed through an informal family settlement or a verbal agreement with the other coparceners. Executing a partition deed, on the other hand, is more appropriate.

When other coparceners refuse to cooperate, a legal complaint for division might be filed. Partial division is also conceivable, in which just the individual making the claim receives his half as independent property, while the rest remain coparceners to the remaining ancestral property.

Only Hindu law demonstrates this. There is no idea of ancestral property under other personal laws, and each property is dealt separately.

The law on integrating separate property with a combined family is well established. A member of a joint Hindu family’s separate property or self-acquired property may be impressed by the character of a joint Hindu family property if he or she voluntarily throws the owner into the common cell to abandon his separate claim on it, but a clear intention to waive separate rights must be established.

The legal assumption that every Hindu family shares in meal, prayer, and estate is a governing basis of Hindu law, and in the absence of any proof of separation, such legal reunion continues to be implemented in the family.

The onus is on the family member who, after establishing the existence of a joint venture in the family holdings, asserts that some of the property that came out with his ancestral property is his own self-acquired property.

Edited by: Tanvee Jain, Publisher, Law Insider

Reference

how-to-claim-ancestral-property-in-india-a-guide

claim-for-an-ancestral-property-in-india

need-know-about-ancestral-property

ancestral-property-legal-rules

wills-intestacy-estate-planning/mysteries-of-ancestral-property

rights-of-coparceners

reopening-of-partition-under-hindu-joint-family

execution-decree

liability-of-ancestral-property-partition-of-estate-separation-of-share-

ancestral-property

Statutes:

1. Muhammad Husain Khan vs Kishva Nandan Sahai, (1937) 39 BOMLR 979 ↑
2. Maktul vs Mst. Manbhari & Others, 1958 AIR 918 ↑
3. Arshnoor Singh v. Harpal Kaur, MANU/SC/0864/2019 ↑
4. Commissioner of Wealth Tax, Kanpur Others v. Chander Sen Others, 1986 3 SCC 567 ↑
5. Yudhister v. Ashok Kumar, 1987 1 SCC 204 ↑
6. Rohit Chauhan vs Surinder Singh, (2013) 9 SCC 419 ↑
7. Venkayamma v. Venkataraman Amma, (1902) ILR 25 Mad 678 ↑
8. Mohammad Hussain Khan v. Babu Krishna Nandan Sahai, (1937) 39 BOMLR 979 ↑
9. Arunachala Mudaliar v. Muruganantha, 1953 AIR 495 ↑