Ancestral Property In India: 15 Facts You Need To Know

Ancestral Property In India: 15 Facts You Need To Know

If you are to inherit an immovable asset, it is essential to comprehend some fundamental information concerning ancestral property.

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1. What does ancestral property actually mean?

Four generations of a single family each own a share of an undivided property known as an ancestral property. An ancestral property would no longer be an ancestral property after it was divided among the stakeholders and would become a self-acquired property.

2. How many generations are eligible to inherit property?

Four generations of the male bloodline have a claim to any categorized ancestral property that has remained undivided. In essence, an undivided ancestral property is inheritable from the father, grandfather, great grandfather, and great-great grandfather. This implies that, for example, on Ram's ancestral property, his sons Shyam, Ghanshyam, and Radhe Shyam have the right to inherit.

The legal heirs of the person who inherits a property from any of his paternal ancestors up to three generations below him also receive an equal claim to that property as co-owners.

(See Coparcener definition in HUF context.)

As a result, three generations below Radhe Shyam would be entitled to an inheritance claim on any property that he gets from his father.

3. What is an undivided property?

The chain will be broken if Ram decides to divide the property between Shyam and his other sons, then the property inherited by Shyam will no longer qualify as an ancestral property but as a self-acquired property. Simply put, no split should occur up to the fourth generation for a property to remain ancestral. When an ancestral property is divided by a partition deed or a family arrangement, it ceases to be an ancestral property as soon as the arrangement takes effect. In a joint Hindu family, a division or partition results in the property becoming self-acquired in the possession of the family member who obtained it.

A joint family property no longer qualifies as a joint family property in the hands of the various individuals 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, the Supreme Court ruled in its decision in the Uttam versus Saubhag Singh & Others case on March 2, 2016.

4. Are properties acquired as gifts or inherited properties?

Ancestral properties do not include those acquired through the execution of a will or through the use of a gift deed. Also take note that a father may, during his lifetime, gift this self-acquired property to a third party through a gift deed. After the donor's passing, the property ownership is passed through a will.

5. Disqualification from ancestral property One is permitted to make a will that prevents their children from inheriting any selfacquired property, including sons and girls. The Delhi High Court decided in 2016 that an adult son had no right to the property that his parents had acquired on their own. The HC judgment stated that a son, whether married and single, has no legal right to reside in a parent's self-acquired home and is only permitted to do so for as long as his parents permit.

The same is not applicable to ancestor property, though. A father is unable to choose to deny his son access to his ancestral properties. However, the Delhi High Court declared in November 2018 that parents who have mistreated their children may evict them from any form of property. The property type, as determined by the HC, would in no way serve as a deterrent in evicting children and legal heirs who neglect their elderly parents.

Since the term "self-acquired" was eliminated by the Delhi Maintenance & Welfare of Parents and Senior Citizens (Amendment) Rules, 2017, seniors may now apply to have their sons, daughters, and legal heirs removed from any type of property, whether it be movable or immovable, ancestral or self-acquired, tangible or intangible.

6. Beginning of an ancestor's property ownership rights When it comes to ancestral properties, a stakeholder's right becomes valid from the moment of his birth. The right to inherit materialises upon the owner's passing in cases of other inheritance, such as inheritance by will. Therefore, in the example given above, Shyam's claim to the property of his ancestors will become valid at the moment of his birth rather than at the time of the passing of his father Ram.

7. Share of each generation in ancestral property Following the determination of each generation's portion, the share of succeeding generations is further divided from the share. It should be noted that when new family members are continuously added, each member's part of the ancestral property is gradually reducing. This implies that eventually your interest in the property can become fairly minor and not be worth pursuing.

8. The scope of the claim for ancestor's property An ancestral property will be subject to a prior claim by the previous generation.

Accordingly, the claim of the succeeding generations will consist of a division of what is left over after the property has been distributed among the stakeholder groups of the previous generation. Simply said, rather of being determined per-capita, the rights of the stakeholders in an ancestral property are determined per-stripe.

The property of Ram's two brothers will first be divided into three portions. Then, the children of each brother can receive a portion of each brother's share, and so forth.

9. The right of women to ancestral property Women did not have a claim to their ancestral property following marriage prior to a change being made to the Hindu Succession Act of 1956 since they were not regarded as coparceners. Old regulations essentially prohibited women from having coparcenary status.

Women are now recognised as coparceners as a result of the Hindu Succession (Amendment) Act, 2005, which amended the succession law. As co-owners of the family's property, both boys and daughters now have an equal share of rights and obligations. Even after her marriage, a daughter continues to be a co-owner of the property. The SC added a restriction that both the father and daughter have to be alive on September 9, 2005 for this clause to take effect, despite the fact that it stated that a daughter has the same rights to the ancestral property as the sons. Regardless of whether the father was alive on this date or not, the SC decided in 2018 that a daughter could inherit her deceased father's assets.

Ancestral traits, however, do not include those obtained from one's maternal side.

10. The rights of women in agricultural land Even though daughters now have an equal stake in inherited property under the 2005 law, this norm was frequently broken when agricultural land was divided in India. The Hindu Succession Act is largely a central legislation, whereas land in India is a state subject.

Agricultural land is divided according to state-specific legislation in many Indian states, which do not recognize daughters as equal beneficiaries of familial property.

11. Son-in-ownership law's interest in father-in-property law's A son-in-law has no claim to a piece of land owned by his father-in-law because he is not regarded as a member of the latter's family. A son-in-law will not have any rights to a property that belongs to his father-in-law, even if he paid for its construction, according to a recent Kerala High Court decision.

"When the father-in-law is in possession of the property, the son-in-law cannot assert that he is entitled to it since, after marrying his daughter, he was adopted as a family member.

The son-in-place law's of residence is a permissible one. The HC stated in the Davis Raphel versus Hendry Thomas case that "(the) son-in-law cannot have any legal right to his fatherin-property law's and building, even if he has spent money on the construction of the building."

12. Regulation of ancestral properties by law While Christians are subject to the Indian Succession Act, 1925 in this regard, Hindus, Sikhs, Jains, and Buddhists are governed by the provisions of the Hindu Succession Act, 1956 when it comes to the division of ancestral property. Muslims are subject to the 1937 Muslim Personal Law (Shariat) Application Act's provisions.

Christians treat men and women equally when it comes to succession and inheritance laws.

Additionally, regardless of how it was acquired, a person's property is considered to be their own, and during their lifetime, no one else can challenge their ownership of it.

The sharers, who are entitled to a specific share of the deceased's property, and the residuary, who inherits the share of the property that remains after the sharers have taken their share, are the two categories of heirs recognised by Islamic law.

13. Who can sell an ancestral property?

According to Hindu law, the head of a Hindu undivided family (HUF) has the authority to manage the family's assets; however an ancestral property cannot be sold on the sole initiative of one or part owners because four generations have a claim to it. Selling an undivided ancestral property will require the approval of each stakeholder. Daughters are also eligible to request the division and sale of the ancestors' property. A legal notification claiming your rights may be submitted to the offending party if a stakeholder is refused his portion of the property or if one member decides to sell the property without discussing the other members.

14. What are a wife's rights to her husband's ancestral property?

According to Hindu law, if a man passes away, his wife is entitled to a share of his inherited property as his Class-I heir. Regarding the husband's self-acquired property, the rules are not always clear. His intentions will prevail if he leaves a will disinheriting his wife from any of his self-acquired fortune.

15. Living together children have a right to inherited property Children born out of a live-in relationship may assert their claim to their father's ancestral property, under a June 2022 Supreme Court ruling.

"It is widely established that there will be a presumption in favour of wedlock if a man and woman live together for many years as husband and wife. Under Section 114 of the Evidence Act, such a presumption could be made. When a man and a woman have cohabited consistently for a number of years, the law presumes marriage and against concubinage," the supreme courts ruled.

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