Share in Ancestral Property
Querist :
Anonymous
(Querist) 14 January 2011
This query is : Resolved
My Great Grand Father (Gen 1) had acquired a piece of immovable property in Trivandrum, Kerala in the year 1960 with his own earnings.
All his children were born before the property was acquired. My Great Grand Father died in the year 1970 with out making any will. My Grand Father Gen (2) left Trivandrum in 1950 and settled out side the state of Kerala. My Father (Gen3) was born in 1955 and I (Gen 4) was born in 1985 and my sister (Gen 4) in 1987.
Half of the property acquired by my Great Grand Father was partitioned in the year 1973 among his children and my great Grand Mother and the remaining Half continues to be held jointly.(ie, the property is not yet partitioned) .The property allotted to my Grand Father in 1973 partition is lying unsold. My Grand Father and my Father are alive. I and my sister, along with our parents, have been living in Karnataka for the last 25 years.
My Query:
1.Whether the above property (property acquired by my Grand Father in Partition and the property not yet partitioned) is an ancestral property in our (Me and My sister) hands, we being the 4th generation children.
2. Do we acquire any right in the above property by birth.
3. Whether our Grand Father or our Father can sell the above property without our consent.
Querist :
Anonymous
(Querist) 23 January 2011
Dear Members,
I would like to put the above facts in a simplified way and the same is given below:
Facts:Mr.GGF (Generation 1) died after the commencement of Hindu Succession Act, 1956 leaving behind his SELF ACQUIRED Property and his widow, son (Mr. GF - Generation 2) and daughter as his legal heirs. Mr. GF was married and had a son (Mr. F – Generation 3) before the death of Mr. GGF. I and my sister (Generation 4), born in 1986 and 1989 respectively, are children of Mr. F. Our Father (F) and Grand Father (GF) are alive. Widow of GGF is no more.
The Query:
1. Whether the above property is an ancestral property in the hands of Mr. GF.
( please see Allahabad High Court decision in Girdhari Lal (D) Vs C.I.T and Anr. reported in (2005) 193 CTR All 656, 2004 269 ITR 50 All )
2. What right do we have in the above property.
R.Ramachandran
(Expert) 23 January 2011
In Commissioner of Wealth Tax, Kanpur and Ors. Vs. Chander Sen and Ors. The Supreme Court held in paragraph 26 as under:
26. In the premises the judgment and order of the Allahabad High Court under appeal is affirmed and the appeals Nos. 1668-1669 of 1974 are dismissed with costs. Accordingly Appeal No. 1670 of 1974 in Income-tax Reference which must follow as a consequence in view of the findings that the sums standing to the credit of Rangi Lal belongs to Chander Sen in his individual capacity and not the joint Hindu family, the interest of Rs. 23,330 was an allowable deduction in respect of the income of the family from the business. This appeal also fails and is dismissed with costs.
Thus, it was held that the property of the deceased inherited by the son belongs to him in his individual capacity and not as the property of the HUF.
However, in Girdharilal’s case while stating in paragraph 5 that it draws its support from CWT v. Chander Sen, the Allahabad High Court has held that “The property may have been the self-acquired property of Gayasen, but the moment Gayasen died the nature of his property changed and it came ancestral property in the hands of his sons and not their self-acquired property. In our opinion, the decision of the Supreme Court in the case of CWT v. Chander Sen [1986]161ITR370(SC) supports our view.”
It can be seen that the view taken by Allahabad HC is quite contrary to the view taken by the SC in CWT v. Chander Sen.
Thus, the self-acquired property of your GGF inherited by his son(s)/daughter(s) and widow, after the death of your GGF are personal properties in the hands of your GF etc.
They will continue to be so, unless your GF who is alive makes any distribution of the property amongst his son(s) clearly expressing the same to be treated as ANCESTRAL.
Till that time, the property would continue to be the individual private property of your GF.
(I think similar query you posted earlier and that was also answered on similar lines).
You are requested not to repeate the same query in different threads.
Querist :
Anonymous
(Querist) 23 January 2011
Thanks Mr. Ramachandran Sir.
I did not see any reply for my earlier query posted on 14th Jan 2011.
Since there were so many dates and migration from one place to other I thought the query was a bit complicated to answer so I removed certain details for the sake of clarity. I did not intend to repeat the query. I apologize if you got an impression that the query was repeated.
I once again Thank you for your prompt reply.
Anonymous
