Ancestral Property
Mugundhan
(Querist) 05 October 2010
This query is : Resolved
Dear experts, a property is situated in Tamilnadu. It was purchased in 1950's by one X who died in 1962 and he was succeeded by his only son Y. Y had a son and a daughter. Y along with his son sold the property in 2006 without the knowledge of his daughter. Now Y also died in 2008. Now is the daughter entitled to claim her share in the property?
Devajyoti Barman
(Expert) 05 October 2010
It would be difficult to get back the sold property but definitely in the rest of the properties she has got a share in it.
R.Ramachandran
(Expert) 05 October 2010
Categorisation of properties - 2 kinds.
(1) Acquisitions in his individual capacity, that can be described as his exclusively owned or separate property.
(2) A share in the joint family property or co-parcenary property, that he holds with other members of the family.
Acquisition of separate property:
Property that is acquired by a Hindu in his individual capacity, without any detriment to the joint Hindu family funds, would be his separate property. It would include the following:
a) ..
b) …
h) property inherited from any relation other than the father, father’s father or father’s father’s father (pre-1956); and
i) property that cannot be called coparcenary property due to any reason whatsoever.
Ancestral or Co-parcenary property:
Prior to 1956, A property that a Hindu male inherits from his father, grandfather (father’s father) or great grandfather (father’s father’s father), would be ancestral or coparcenary property in his hands, with respect to his son, grandson (son of son) and great grandson (son of son of a son).
This position has been substantially modified after the passing of the Hindu Succession Act, 1956.
Property Received after Partition of Joint Hindu Family:
Where a coparcener (male member) separates from the joint family after effecting a partition, the character of the property with respect to his share, is coparcenary property with respect to his male descendants. But with respect to his father and brothers, from whom he separates, it is his separate property.
Where a single male Hindu obtains his share at a partition and separates, he holds the property as a sole surviving coparcener. When he gets married, the property in his hands would be called the joint family property, and when he gets a son, his son would acquire a right by birth in this property.
Property inherited from the father under the Hindu Succession Act, 1956:
The Hindu Succession Act was passed in 1956. The Act specifies in the preamble, that it is intended to amend and codify the law governing intestate succession among Hindus. It both modifies and codifies the Hindu Law.
Section 4 also provides that any rule of Hindu law or custom, inconsistent with the provisions of the Act, would cease to have any effect and it is the statutory provisions that would prevail.
A cumulative reading of both the preamble and of section 4 would show that wherever the classical law has been modified or abrogated by any provision of the Act, the law as given by the Act, will apply.
Section 8-13 and Schedule I, lays down the law of inheritance regarding the property of a male Hindu.
On interpreting the provisions, the Courts including the Apex Court have affirmed and reaffirmed that the son inheriting the property from his father, grandfather or great grandfather, under the Hindu Succession Act 1956 would take it as his exclusive or absolute property, with no right of his male descendants over it.
The classical law in this respect, therefore, stands abrogated. Inheritance under the Act creates an absolute ownership in favour of the son.
Post 1956, therefore the property inherited by a son from his father, under s-8 of the Hindu Succession Act 1956, would be his separate or exclusive property and his male issue will not have a right by birth, in this property.
The son does not inherit the property as the Karta of his branch, but does it in his individual capacity as the son of the intestate, and not as the representative of his male issue.
He retains the exclusive power of disposal of this property and his male issue is not competent to restrain him from doing it or to ask for a partition of the property.
In the instant case, the son "Y" inherited the property from his father after 1962 (i.e. after coming into force of the Hindu Succession Act, 1956) and as such it is "Y"'s exclusive property. In fact even his son need not have signed the sale deed. When "Y"'s son himself did not have any claim over the property during the life time of "Y", the question of the daughter claiming any share therein does not at all arise.
Since it is a separate property of "Y", the Amendment in the year 2005 to Hindu Succession Act making the daughter also a co-parcener as equal to the son of a Joint Hindu Family has no application in this case.
G. ARAVINTHAN
(Expert) 05 October 2010
she have right and entitled for the share
R.Ramachandran
(Expert) 06 October 2010
Dear Mr. Aravinthan,
I shall be grateful if you could kindly indicate your legal reasoning for your conclusion. (This will help me to correct / update my view.)
