11 facts you must know about ancestral property in India

[ecis2016.org] It is crucial to understand certain basic facts about ancestral property if you are to inherit an immovable asset

The laws of inheritance enable one to have a claim over one’s ancestral property, which is an immovable asset that belonged to your ancestors. However, the stakeholders often have several misconceptions about the assets they expect to inherit from their elders and make mistakes that often lead to long-drawn legal battles. This is why it becomes crucial to understand certain basic facts about ancestral property.

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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. This means on Ram’s ancestral property, his son Shyam, Shyam’s son Ghanshyam and Ghanshyam’s son Radhe Shyam have inheritance rights. In other words, the father, the grandfather, the great grandfather and the great-great grandfather have inheritance rights over an undivided ancestral property.

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.

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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.

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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.

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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.

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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.

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.

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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.

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.

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.

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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.

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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.

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.

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.

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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.

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