Real Estate Basics: What is an Ancestral Property?

What is Ancestral Property?

The dictionary meaning of Ancestral Property – “property which has been inherited from the ancestors” was accepted by the Court. A property inherited from a father, father’s father or father’s father’s father is ancestral property.

A property which is acquired by a Great Grandfather and is passed down undivided to the next three generations up to the present generation of great grandson/granddaughter is known as ancestral property.

Under Hindu Law, property is classified as Coparcenary Property and Separate Property, Coparcenary Property is further classified in Ancestral Property and Joint family property.

Coparcenary refers to equal inheritance that was restricted only to male members of the Hindu Undivided Family. It is a narrow body of persons within a joint family. Coparceners jointly inherit property and have unity of possession. Coparcenary means ‘A species of estate, or tenancy, which exists where, land of inheritance descent from the common ancestor to two or person.’ 

When property can be classified as Ancestral

Ancestral property can be defined in general parlance as the property, which has been passed on from one generation to another. There are two major conditions that a property has to fulfill in order to be an ancestral property, these are as follows –

1.   The property has to be four generations old at the least;

2.   The same shouldn’t have been partitioned or divided into the past three generations.

The following points should also be considered while determining the property as ancestral;

• The property should not have been divided by the members. When the division/partition happens, it becomes self-acquired property and not ancestral property.
• The person has the right over the property  from birth.
• The ancestral property rights are controlled by per stripes and not by per capita.
• The shares are first determined for each generation and subdivided for the successive generation.

Who can sell the Ancestral Property?

The Hindu law states that if you are the head of a Hindu undivided family, you have the powers to manage the family assets under the law. However, this does not give you an absolute, independent and individual ownership of the property because each coparcener has a share, right, title and interest in the property.

But, under some rare circumstances, such as during the time of family distress (legal necessity), or for the sake and the benefit of the family or to carry out some religious work, the common property can be disposed of.

Sec 8 of Hindu Succession Act, 1956 & Ancestral property

The inheritance of such ancestral property is different from inheritance under section 8 of the Hindu Succession Act, where any inherited property becomes separate and self acquired property of the successors/ legal heirs who inherits the same. However, there may be exceptions to such rule as well. In various judgements, it was held that if a Hindu Undivided Family (“HUF”) and its properties were existing prior to the passing of HSA in 1956 and which HUF continued even after passing of HSA, in which case a property inherited by a member of HUF even after 1956 would be HUF property in his hands – to which his paternal successors in title up-to three degrees would have a right. The second exception was when the person who acquires a self-acquired property throws the same into a common pool of HUF.

Effects of partition on Ancestral Property

An ancestral property divided/ partitioned through a partition deed, family arrangement, etc. loses its ancestral character. The prerequisite of an ancestral property is that an ancestral property should not have been divided or partitioned by the family members,  once a division of the ancestral property takes place, the share or portion which each coparcener gets after division becomes his or her self acquired property. After partition, the share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issues.

On partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.

Can daughters inherit Hindu ancestral property?

Under Sec 6 of Hindu Succession (Amendment) Act 2005 even daughter(s) are entitled to a share in the property along with their male siblings. At present, a daughter has the same rights in the property of her father on par with a son. But, daughters cannot inherit ancestral property if father has died before 2005. Therefore, if a person had passed away before 2005, the daughter cannot claim an equal share in the property. She is however entitled to a certain amount of maintenance if she is unmarried.

Concepts of Ancestral property amongst other religions

Muslim Law

Under Muslim law, the concept of ancestral and self-acquired property is not recognised. As long as the person is alive, the property owned by him is his absolute property and no right of any legal heirs accrues until his death. Upon his demise, the legal heirs become entitled to a definite fraction of the estate of the deceased.

Christianity

The succession rules amongst the Indian Christians is governed by the Indian Succession Act, 1925. There is no concept of ancestral property under the Indian Succession Act. All types of properties owned by an Indian Christian can be willed away by him/her by executing a Will.

Some important points regarding ancestral properties

•  The right to a share in an ancestral property comes by birth.
• Properties of the paternal ancestors cannot be sold without the consent of the successors. However, it can be reclaimed by filing a suit for partition in a court.
• The property is regarded as an ancestral property provided it is not divided by the members of a joint Hindu family.
• Properties acquired from the maternal side do not qualify to be an ancestral property.
• The head of a Hindu undivided family has the power to manage the family assets under the Hindu law. But when it comes to ownership and rights over an ancestral property, each coparcener is entitled for getting his or her share.

The Legal Remedy in respect of an Ancestral Property

If you have been denied a share in your ancestral property, you can send a legal notice to the erring party. You can also file a suit for partition in the civil court, claiming your share. To ensure that the properties are not sold when the matter is sub-judice, you may seek injunction from the court in the same suit. In case, the property has been sold without your consent, add the buyer as the party in the suit and claim your share in the property.

Difference between Joint Family and Ancestral Property

No	Joint family	Coparcenary
1.	There is no limitation of degrees or generations with regard to the membership of the Joint Family.	In Coparcenary, Males upto four degrees (including senior most male) or generations from the senior most male members are the members of the Coparcenary.
2.	Some members, i.e. Female members have no right by birth in the property.	In Coparcenary all members have the right in the property by birth.
3.	Certain females like Father’s wife, Mother, Grandmother etc. have no right to demand partition.	In Coparcenary all the members have the right to demand partition.
4.	A Joint Hindu family shall constitute even after the death of Manager/male/Karta and consisting only females.	A Coparcenary may come to an end with the death of the last coparcener or sole surviving coparcener.