How is Ancestral Property Divided?

ancestral property

Ancestral property is a property to which you have a right since your birth and you inherit this property from your parents they inherit from their parents. The ancestral property act is defined under the Hindu Succession Act, of 1956. It applies to all Hindus, Sikhs, Jains, and Buddhists.

Types of property

  1. Ancestral property
  2. Self acquired property

What is Ancestral Property?

It is a property that is not divided into family members and in which four generations of a single-family share. It continues like coming from your Great-grandfather to your grandfather after to your father and then to you. For making a property ancestral they should follow the hierarchy.

What is Undivided Property?

When a property is not divided into new family members during the whole life of the property owner is considered as ancestral property. If a person divides his ancestral property into his sons and daughter then the chain will break of an ancestral property. In simple words, no division should take place up to four generations.

For Example, a person Rian divided his property into his sons and daughter by making a will of a property. After the death of Rian, his property will divided into his Children according to the will. Now this property is not considered undivided property because he made the will at the time he was alive.

What is Self Acquired Property?

A person buys or acquires by sale deed, gift deed, or will of any movable or immovable property is known as self-acquired property. In this self-acquired property, none of your legal heirs can claim. Even when your ancestor makes the will of ancestral property or divides the property during the lifetime then the property loses its title and becomes self-acquired property.

A Women’s Right in Ancestral Property?

In the Hindu Succession Act 1956, women had no right to ancestral property after their marriage, they were not considered as coparceners but after the amendment in 2005 was made women had all the rights in their ancestral property even after their marriage. She remains the coparceners in the property and shares all rights and liabilities of that property.

Now the daughter has all the rights as same as the son on the ancestral property, the Supreme Court put a caveat that both father and daughter were alive at the time of amendment on 9 September 2005, for this provision to come into force. In 2018, however, the Supreme Court stated that a daughter can inherit the rights in her deceased father’s property whether the father is alive or not on that date. However, property acquired from the maternal side does not qualify as ancestral property.

Can Anyone Sell Ancestral Property?

In a simple sense, we can say that an individual member of the family cannot sell the ancestor’s property. Since four generations have their rights and claims on the property, it cannot be sold by an individual he has to obtain the consent of all the coparceners of the ancestor property. However, an individual can sell his share of the ancestral property. If he sells more than his shares the other family members can stop him or send a legal notice to stop from selling.

In India, there is a custom in a Hindu family in which who is older than everybody from the family members is known as Karta of the family. Karta of the family will make all the decisions of the family. The Karta of the family manages the Hindu Undivided Family business.

Kehar Singh Vs Nachitter Kaur (2018)

In this case, the Supreme Court gave the judgment that if Karta wanted to sell the ancestral property for the necessity of his family, no one could challenge the property from selling. He can make the all necessary decisions for his family members.

Circumstances Where a Person Can Sell the Ancestral Property?

Under Supreme Court guidelines there are some circumstances in which the Karta of the Family can sell the Ancestral Property such as:

  1. To settle the amount of ancestral property loan
  2. To maintain the family members
  3. To pay the government the remaining amount
  4. For the expenses given in the court in litigation of a family matter
  5. For the betterment of the family
  6. For the medical expenses that arise in the family
  7. For the marriage of a family member

What is the Right of a wife in her husband’s family property?

Under Hindu law, the wife has all rights in her husband’s ancestral property in class-I heir after his demise. But in self-acquired property, the wife has no right if the husband cuts his wife’s name on the will he made before he died after the death of the husband, the wife cannot claim any right to her husband’s self-acquired property.

What are the Live-in relationship rights of a child?

In a live-in relationship, if a woman gets pregnant and is born a child, according to the June 2022 order by the Supreme Court, children who are born out of a live-in relationship can claim their rights in their father’s ancestral property. It will be considered husband and wife if a man and woman live together for long years, there would be presuming a marriage.

Do illegitimate children have rights in ancestral property?

A child born out of a void marriage cannot claim ancestral property but they can claim their shares only in their parent’s self-acquired property, even if they are illegitimate children.

In July 2023 Supreme Court decided that a child born out of a void or voidable marriage has a right over properties belonging to a Hindu undivided family.

What is the right of Grandchildren if the father relinquishes his rights?

Supreme Court guidelines in 2023 said that grandchildren cannot claim the right to self-acquired property of their grandfather if the father has already relinquished his right in exchange for money in the said property.

Supreme Court bench said that if the son relinquishes his right from his father self acquired property in exchange for money, then the principle of estoppels will apply in the case of his sons and successors.

Do Daughters lose Rights to Parent’s Property because they got Dowry?

No, the daughters are not extinguished because they got dowry at the time of their marriage. A Goa bench of the Bombay High Court has ruled that if some dowry was provided to the daughter’s marriage, it does not mean that the daughter cease to have any right in their family. The daughter’s right could not terminated by her brothers if they attempted to do so after her father’s death. The bench stated a situation where a brother transferred property without her consent.

What are the categories of heirs?

Under the Hindu Succession Act, section 6 classifies the categories of heirs which are divided into two classes.

  1. Class I heirs include son, daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, widow of a pre-deceased son, son of a dying daughter of a dying daughter, daughter of a dying daughter of a dying daughter, etc.
  2. Class II heirs include the father, the son’s daughter, the son; ‘s daughter, the brother’s daughter, the sister’s daughter, the father’s father, the father’s mother, the father’s widow, the brother, ‘s sister, the mother’s father, the mother’s mother, the brother’s sister, and the brother’ son, etc.

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