Ancestral property rules
swamini
(Querist) 26 September 2015
This query is : Resolved
hello sir,
1)want to know about property rule how get divided between children. we are 3 , one bro and 2 sis can we get equal share of property of my father . My father got property inherited from his father . they are three brothers . the share of my fathers property can be divided into three amongst us bro sis. or how? My Mom is also there.
2) secondly can my father will his share of property to my moms name though documents are with his younger brother and he is not ready to give to my moms name.
3} since i have one brother is it automatically he will be the owner of all the property in abscent of my father.
4}my uncle said we donot have any share because its our grandfathers property not directly fathers.
plz guide.
SAINATH DEVALLA
(Expert) 27 September 2015
HINDU ANCESTRAL PROPERTY:
To determine a person’s share in Hindu ancestral property, three sources of law have to be understood – 1) Old Hindu law 2) The Hindu Succession Act, 1956 and 3) Judicial decisions.
To determine a person’s share in Hindu ancestral property, three sources of law have to be understood – 1) Old Hindu law 2) The Hindu Succession Act, 1956 and 3) Judicial decisions.
The Hindu Succession Act tinkered only with certain aspects of Hindu law and anything not touched upon by the Act is still governed by Old Hindu law, as determined by the religious texts. The Hindu school was divided mainly into the Dayabhaga school prevalent in Assam, Bengal and Punjab while the rest of India followed the Mitakshara school. Apart from this, separate rules of inheritance was followed in the West Coast, i.e., Kerala and Mangalore.
What is ancestral property ? Property inherited upto 4 generations of male lineage (i.e., father, grand father, etc.) is called as ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.
What is not ancestral property ? Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties. Self acquired property on the other hand can become ancestral property only if it is thrown into the pool of ancestral properties and enjoyed in common. This is a matter to be determined on the facts and circumstances of the case.
HUF different from co-parcenary : Normally the words HUF (Hindu United Family) and co-parcenary / ancestral property are used by the layman interchangeably. This is not so. A HUF is simply a Joint Hindu family living together, which need not necessarily own property. It could also have females as its members, which was not allowed in a traditional co-parcenary, (until recent amendments made in the center and the state) where only males were allowed to be members.
HUF different for tax purposes : The income tax law is a separate class by itself and simply assesses the income of a family which has declared itself as a HUF, which could even consist of a father, wife and daughter and which need not necessarily own property.
Hindu Succession Act : This act repealed certain acts passed during the British era, like Hindu Gains of Learning Act and Hindu Women’s right to Property Act. Such acts had introduced the concepts of self acquired properties and rights of widows to have a share equal to that of a son in coparcenary property after the death of a Hindu male. However the progress made by these acts have not been lost and the passing of The Hindu Succession Act again sought to enlarge the rights of Hindu daughters in owing a piece of ancestral property.
Section 6: In order to give rights to daughters, the act introduced a legal fiction of ‘notional partition’ whereby when a male Hindu dies after the commencement of the act, (leaving behind female relatives and without executing a will) his share in the coparcenary property is deemed to have been divided at the time of his death, whether actual partition has taken place or not.
a) This means that if a family consists of a father, mother, two sons and a daughter, the share of the father at the time of death, after notional partition would have been 1/4th share in ancestral property. This is because each of the sons take one share (as coparceners), the wife takes one share and the father takes one share as per the rules of old Hindu law (and as per judicial pronouncements which have interpreted and enlarged the scope of the Hindu Succession Act).
b) The share belonging to the father is then again sub - divided equally between all the heirs, i.e., mother, sons and daughter. This 1/4th share goes out of the co-parcenary property for all times. Thus the sons apart from inheriting 1/4th share as coparceners in their own right, also inherit a small share in their individual capacity from the divided share of their father. The share inherited by the mother and daughter also goes out of the coparcenary property. There are conflicting judgments on whether the shares of the sons are to be treated as coparcenary properties or not after partition, by the different high courts and supreme court.
Will and Section 8 : Any interest in any co-parcenary property can also be willed away and this share also goes out of the purview of the ancestral property. Also, if a father dies leaving self acquired property, his son will inherit it absolutely. The grandson cannot claim the same as ancestral because it was inherited under Section 8 of The Hindu Succession Act. In every instance it should be determined if a property was inherited by succession (section 8) or survivorship (section 6) or by testamentary (will) succession.
State and Central amendments: The Hindu Succession Act has been amended in the center in 2005 giving equal rights to daughters in coparcenary property. The same rights were given to daughters by various state amendments made earlier, in Andhra Pradesh, Karanataka, Tamil Nadu and Maharashtra. If a daughter has not been married as on 30.7.94, she gets equal share as that of a son in coparcenary property in Karnataka. Thus the daughters get a right by birth similar to that of a son. If she is unmarried (or married and has no child or children) and dies, her co parcenary property will be inherited by other coparceners, if she has not left a will to the contrary. If she has a child the property will be inherited by her child or children by succession, in the absence of a will.
Rajendra K Goyal
(Expert) 27 September 2015
1. Property of your father would be inherited by all his legal heirs (son, daughters, wife).
2. The property is in the name of father he can will.
3. He can not become owner of full property automatically.
4. If the property is of grandfather, uncles have share in the property.
Anirudh
(Expert) 27 September 2015
Just because your father got the property from his father, does not automatically mean that it is 'Ancestral property'.
Please give your exact fact situation to enable give an appropriate answer to your query.
1. How did your grand father (i.e. father's father got the property - whether he self-acquired it, or got it from his father etc.)
2. If he self-acquired it, when did he acquire it? When did he expire?
3. If he got it from his father, then when did he get it?
Without knowing the above information, it is not at all possible to answer your query.
swamini
(Querist) 27 September 2015
1. YES my grand father purchased this. means self acquired .
2/ he expired 1955. and now entire property is converted to my father and his two brothers. but my father is not well now . so in his absent who will be the legal heir of the property ?
is it automatically come to my mom or we have to do something for this?
swamini
(Querist) 27 September 2015
secondly how daughters can claim their share on fathers property.
Anirudh
(Expert) 27 September 2015
From the information provided by you, I can say with certainty that the property in your father's hand is 'ANCESTRAL PROPERTY'.
It seems that the property in your father's hand has not been so far partitioned. Therefore all the sons and daughters of your father being co-parcenars are entitled for equal share, along with your father. If you happen not to be from Dravidian culture i.e. your mother is also entitled to equal share. Thus, the property in the hands of your father has to be divided into 5 shares (i.e. including one share for your mother).
At best, your father can only create a WILL in respect of his share in the property and not the whole of the property.
Your father can definitely will his share (i.e. 1/5th) in the property to anybody (if that happens to be your mother, yes).
One time you say that your father inherited the property from his father. At another time you say that your uncle was saying that uncle you do not have any share because its your grandfathers property not directly hour fathers. You also say that the documents are with your father's younger brother. It is not clear what you want to say. You are confusing.
As already stated herein above, the ancestral property in your father's hand now will first get divided into 5 equal shares. In the event of anything happening to your father, and if your father does not create any WILL for his 1/5th share, then that 1/5th share will go equally to all his sons and daughters and wife. Therefore the property will not go entirely to your brother.
swamini
(Querist) 28 September 2015
about your queries sir..
This propert is joined i mean my grandfather died long back , property is his sons name , 3 sons. since my younger uncle stays in village house with grand mother. (now grand ma is also expired last year) all documents are with him , now if my father wants to will his share of property to his wifes name( my mom) can he do that. for that will he need all property documents or he can make in general a will. because my uncles are reluctant about this. and my father is not well . and mom is also old. and we are all married ( 2 sisters) and brother stay separately.
Anirudh
(Expert) 28 September 2015
1. From the facts revealed by you so far, it appears that your uncle is not interested in partitioning the property and giving your father's share to your father.
2. Therefore, your father has to file a suit for partition - any delay will be harmful.
3. Yes, your father can give a WILL even in the absence of the documents. But, please remember, he cannot give the entire property on WILL, but he can give on WILL only his share i.e. 1/5 of the 1/3rd share which he will receive in partition.
swamini
(Querist) 28 September 2015
yes for sure . My father only wants to will his share of property to my moms name. nothing else.
swamini
(Querist) 28 September 2015
HELLO Sainath sir,
you have mentioned that property can be claimed by daughters ,If a daughter has not been married as on 30.7.94, so if daughter got married on 1990 suppose then she will not be able to get the property share ? pls explain
T. Kalaiselvan, Advocate
(Expert) 03 October 2015
I have my own doubt especially to the opinion of expert learned Mr. Anirudh. The property was bought by the author's grandfather, i.e., it was his self acquired property. Upon his intestate death the property devolved on all his legal heirs and they have all taken possession of the property on the basis of oral partitions or without any partition too. So where it the question of ancestral property in this. If the father of the author dies intestate then his share of property will devolve on all his legal heirs which includes his mother. I dont think there is any coparcenary rights vesting on the author in respect of this property.
Please correct me if I am wrong.
Anirudh
(Expert) 03 October 2015
Dear Mr. Kalaiselvan,
Many have doubts and that is understandable.
Please note that at one time or the other the property would be self-acquired. Therefore self-acquisition of the the property in itself will not deny it from becoming ancestral property.
In fact, the original mode of acquisition of property is immaterial for the determination of its character subsequently. A separate property of a Hindu male, when inherited by his son on his death, and prior to coming into force of the HSA 1956, becomes ancestral or coparcenary property with respect to his male issue. The property which was a separate property of the acquirer to begin with, changes its charater and becomes ancestral after its inheritance by the son of the owner with respect to his own son.
Please also note that the person who self-acquired it expired in the year 1955 itself, i.e. prior to coming into force of the Hindu Succession Act, 1956. The self-acquired property stood devolved on the male co-parcenars prior to 1956 and acquired the character of 'ancestral property' in the hands of the sons of the deceased.
