1. What exactly is ancestral property?
An ancestral property is an undivided property, in which four generations of a single family have their share. Once divided among the stakeholders, an ancestral property would cease to be an ancestral property, and turn into a self-acquired property.
See also: Gift deed vs will: Which is a better option to transfer property
2. How many generations can claim ancestral property?
In case of a classified ancestral property that has remained undivided, four generations of the male lineage have their claim. Basically, the father, the grandfather, the great grandfather and the great-great grandfather have inheritance rights over an undivided ancestral property. This means, say, on Ram’s ancestral property, his son Shyam, Shyam’s son Ghanshyam and Ghanshyam’s son Radhe Shyam have inheritance rights.
Also, whenever someone inherits a property from any of his paternal ancestors up to three generations above him, his legal heirs of up to three generations below him would get equal right, as coparceners in that property. (Check out Coparcener meaning in HUF context)
So, when Radhe Shyam inherits a property from his father, three generations below him would have an inheritance claim on it.
See also: Benefits of self-acquired properties
3. What is an undivided property?
If Ram decided to divide the property between Shyam and his other sons, the chain will be broken and the property inherited by Shyam will no longer qualify as an ancestral property but a self-acquired property. Simply stated, for a property to remain ancestral, no division should take place up to the four generations. An ancestral property that has been divided through a partition deed or a family arrangement, ceases to be an ancestral property as soon as the arrangement comes into effect. In other words, when a division or a partition takes place in a joint Hindu family, the property becomes self-acquired in the hands of the family member, who has received it.
Passing its judgment in the Uttam versus Saubhag Singh & Others case on March 2, 2016, the Supreme Court ruled that a joint family property ceases to be a joint family property in the hands of the various persons who have succeeded to it under Section 8 of the Hindu Succession Act, 1956, as they hold the property as tenants in common and not as joint tenants.
See also: Types of land ownership
4. Can properties obtained through a gift or will be ancestral properties?
Properties that one acquires by way of a gift deed and through the execution of a will, do not qualify as ancestral properties. Also note that through a gift deed, a father can give this self- acquired property to a third party in his lifetime. Through a will, the property ownership is transferred after the demise of the donor.
See also: Can gift deed be revoked
5. Exclusion from ancestral property
One is free to write a will and exclude one’s offspring (sons as well as daughters) from inheriting their self-acquired property. In 2016, the Delhi High Court ruled that an adult son had no legal claim on his parents’ self-acquired property. “Where the house is a self-acquired house of the parents, a son, whether married or unmarried, has no legal right to live in that house and he can live in that house, only at the mercy of his parents up to the time the parents allow,” the HC order said.
See also: All about probate meaning when it comes to a will
The same, however, is not true for ancestral property. A father does not have a choice to exclude his son from possession of his ancestral properties. However, the Delhi HC, in November 2018, ruled that harassed parents can evict their children from any type of property. The type of the property, ruled by the HC, would in no manner act as a deterrent in eviction of children and legal heirs, who ill-treat their elderly parents.
After an amendment in the laws through the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2017, through which the term ‘self-acquired’ was done away with, seniors can apply for eviction of their sons, daughters and legal heirs from the property of any kind ─ movable or immovable, ancestral or self-acquired, tangible or intangible.
6. Start of ownership right in an ancestral property
In case of ancestral properties, the right of the stakeholder arises at the time of his birth. In other forms of inheritance, such as inheritance through a will, the right arises at the time of the owner’s death. So, in the above stated example, Shyam’s right in his ancestral property will arise at the time of his birth and not at the time of his father Ram’s demise.
Also read: Varisu Certificate: Apply and download legal heir certificate online in Tamil Nadu
7. Share of each generation in ancestral property
The share of each generation is first determined and the share of successive generations is further subdivided from the share. Note here that the share of each member in his ancestral property is constantly decreasing as newer members keep adding into the family. That means, at some point, your share in the property might become quite insignificant and not worth pursuing.
8. Extent of claim over ancestral property
The previous generation will have a prior claim on an ancestral property. This means that the claim of the following generations will be a sub-division of what is left after the property is divided among the stakeholders of the prior generation. Simply stated, the rights of the stakeholders in an ancestral property are decided on a per-stripe basis and not on a per-capita basis.
If Ram has two brothers, their ancestral property will first be divided into three shares. The share of each brother can then be divided among their offspring and so on.
9. Women’s right in ancestral property
Before an amendment was made in the Hindu Succession Act, 1956, women did not enjoy a right on their ancestral property after their marriage as they were not considered as coparceners. The old laws basically denied coparcenary status to women.
After the amendment in the succession law through the Hindu Succession (Amendment) Act, 2005, women have been accepted as coparceners. Now, both, sons and daughters, are coparceners in the family and share equal rights and liabilities over the property. A daughter remains a coparcener in the property even after her marriage. While it said that a daughter has the same rights over the ancestral property as the sons, the SC put a caveat that both, father and daughter, had to be alive on September 9, 2005, for this provision to come into force. In 2018, however, the SC ruled that a daughter can inherit her deceased father’s property, irrespective of whether the father was alive on this date or not. However, properties acquired from one’s maternal side do not qualify as ancestral properties.
See also: Property rights of a Hindu daughter under the Hindu Succession Amendment Act
10. Women’s right in agricultural land
Even though the 2005 has made daughters an equal stakeholder in ancestral property, this rule often ignored at the time of division of agricultural land in India. This is primarily because land in India is a state subject while the Hindu Succession Act is primarily a central law. In many Indian states, agricultural land is divided according to state-specific laws that don’t treat daughter as equal beneficiaries of ancestral property.
See also: Can second wife claim property of first wife
11. Son-in-law’s right in property of his father-in-law
Since a son-in-law is not considered a part of the family of his father-in-law, he has no right in a property owned by the latter. According to a recent ruling by the Kerala High Court, a son-in-law will have no right in a property belonging to his father-in-law, even if he has given money for the construction work of the said property.
“When the father-in-law is in possession of the property, the son-in-law cannot plead that he had been adopted as a member of the family, subsequent to the marriage with his daughter and has right in the property. Residence of the son-in-law is permissive in nature. (The) son-in-law cannot have any legal right to his father-in-law’s property and building, even if he has spent an amount on the construction of the building,” the HC said while giving its verdict in the Davis Raphel versus Hendry Thomas case.
12. Laws governing ancestral properties
While ancestral property is divided under the provisions of the Hindu Succession Act, 1956, among Hindus, Sikhs, Jains and Buddhists, the rules in this regard are governed by the Indian Succession Act, 1925, in case of Christians. In case of Muslims, provisions of the Muslim Personal Law (Shariat) Application Act, 1937, apply.
Among Christians, the inheritance and succession rules treat men and women equally. Also, their property is treated as self-acquired, in spite of its mode of acquisition and during one’s lifetime, nobody else can contest for it.
Under the Muslim law, there are two types of heirs – the sharers, who are entitled to a certain share in the deceased’s property and the residuary, who takes up the share in the property that is left over after the sharers have taken their share.
13. Who can sell an ancestral property?
While the head of a Hindu undivided family (HUF) has the power to manage the family assets under the Hindu law, an ancestral property cannot be sold by the sole decision of one or part owners, since four generations have their claim over such a property. The consent of each stakeholder will be required, to sell an undivided ancestral property. All coparceners, including daughters, can seek partition and sale of the ancestral property. In case a stakeholder is denied his share in the property or in case one member decides to sell the property without consulting other members, a legal notice could be sent to the offending party, demanding your rights.
See also: Who is a Karta in a Hindu Undivided Family?
14. What is the right of a wife in her husband’s ancestral property?
Under the Hindu law, the wife of a man is entitled to get a share in her husband’s ancestral property in the capacity of his Class-I heir after his demise. Rules are not so straightforward, when it comes to the husband’s self-acquired property. In case he dies leaving a will and cutting his wife off of his self-acquired property, his wishes will take prevalence.
15. Children born in live-in relationships have right to ancestral property
According to a June 2022 order by the Supreme Court, children born out of a live-in-relationship can claim their right in their father’s ancestral property.
“It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act…The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years,” the apex courts has ruled.
16. Illegitimate children too have right in ancestral property
According to the Supreme Court illegitimate children have the right in their parent’s self-acquired as well as ancestral properties under the Hindu Marriage Act.
“The relationship between the parents may not be sanctioned by law, but the birth of a child in such a relationship has to be viewed independently of the relationship of parents. A child born in such a relationship is innocent and entitled to all the rights, which are given to other children born in valid marriages. This is the crux of Section 16 (3),” a Bench of justice GS Singhvi and justice AK Ganguly ruled, while giving its verdict in Revansiddappa & Others versus Mallikarjuna & Others in 2011.
See also: Property rights of illegitimate children
17. Grandchildren can’t claim right to grandfather’s self-acquired property if father relinquishes right: SC
The Supreme Court in January 2023 said that grandchildren can’t claim a share in the self-acquired property of their grandfather, if their father has already relinquished his rights in the said property in exchange for money.
An SC Bench said that once a son relinquishes his right in the self-acquired property of his father in exchange for money, the principle of estoppel will apply in case of his sons and successors.
In 2015, the Madras High Court had also ruled that grandchildren were not entitled to claim a share in the self-acquired property of their paternal grandfather if it had been allotted to their father in a family partition in his capacity as legal heir and not as a coparcener under the Hindu Succession Act.
18. Daughters don’t lose right in parent’s property because they got dowry: HC
The right of daughters in their paternal property does not get extinguished because a dowry was given at the time of their wedding, the Goa Bench of the Bombay High Court has ruled.
“Even if it is assumed that some dowry was provided to the daughters, that does not mean that the daughters cease to have any right in the family property. The rights of the daughters could not have been extinguished in the manner in which they have been attempted to be extinguished by the brothers, post the father’s demise,” the Bench said while giving its order in case where a brother has made a transfer deed without getting consent of his sister.
19. Family property received by Hindu woman through partition deed is not inheritance: HC
An ancestral property received by a Hindu woman through a registered partition deed will not qualify cannot be termed inheritance under the Hindu Succession Act, the Karnataka High Court has ruled. Consequently, such a property will not go back to the heirs of the woman’s father upon her demise, the HC added.
Read full coverage here.
20. Father’s self-acquired property given to children by will/gift retains its status unless stated otherwise
According to the Supreme Court of India, in case a father leaves his self-acquired property to his children through a gift deed or through a will, the property retains its status as a self-acquired property and won’t turn into an ancestral property unless stated otherwise in the deed.
FAQs
What is an ancestral property?
An ancestral property is a property or a land parcel that belonged to one’s ancestors.
What are the types of properties under the Hindu law?
According to the Hindu law, properties can be classified into two types: an ancestral property and a self-acquired property. The self-acquired and undivided property of a person’s great-great grandfather becomes an ancestral property.
Can a daughter ask for the partition of an ancestral property?
All coparceners, including daughters, can seek a partition and sale of an ancestral property.
Who are eligible for ancestral property?
Four generations of a family can claim their right in their ancestral property.
What is the difference between inherited and ancestral property?
Ancestral property is that which remains undivided. Once an ancestral property is divided among its stakeholders, is will be branded an inherited property.
Who is legal heir for ancestral property?
According to the Hindu Succession Act, legal heirs can be categorized in Class-I and Class-II heirs. Class-I heir of the deceased include his the widow, children and mother. Class-I heir of the deceased include his father, grandchildren, great grandchildren, brother, sister and other relatives.
