This Article is written by Rohit Raj, a Student currently pursuing B.A. LLB (Hons.) from Lloyd Law College. This is an exhaustive article based on the classification of Properties and which type of Properties is existing in the current Scenario.
“Property is intended to serve life, and no matter how much we surround it with rights and respect, it has no personal being. It is part of the earth man walks on. It is not a man.”
-Martin Luther King, Jr.
The word ‘property’ is derived from the Latin word ‘proprietary’ and the French comparable ‘proprius’ which implies a thing owned. The concept of property and ownership is closely associated with one another. There is often no property without possession and no possession without property. The concept of property possesses a significant place in human life since it’s impossible to measure the extent of ownership without property.
The property includes an exceptionally more extensive meaning in its real sense. It not only includes the money and only the other tangible things but it also includes intangible rights which are considered as a source of income or wealth. The interest which a person has in lands and chattels to the exclusion of others and it is proper to enjoy and to lose certain things most supremely as he pleases, provided he makes no utilization of them precluded by law.
The sea and the air, cannot be appropriated; one may appreciate them, but no one has an exclusive right over it. When things are fully our own, or when all others are prohibited from intruding with them, or from interfering around them, no individual other than the proprietor, who has this exclusive right, can have any claim either to use them, or to prevent him from disposing of them as he satisfies.
And the reason behind is that the property, considered as an exclusive right to things, contains not as it were a right to utilize those things, but a right to a range of them, either by exchanging them for other things or by giving them away to any other individual, without any consideration, or even throwing them away.
Classification of Property
Classification of Property means Property is divided into different forms which are known by different names and all the different properties have their own characteristics, features, and way of conducting its property. According to Article 220 of Hindu Law, Property is classified into two types: (1) Joint Hindu Family Property (2) Separate Property. Joint-family Property is also known as ‘Coparcenary Property and this property consists of (a) Ancestral Property (b) Property jointly acquired by the members of the Joint family. (c) Separate property of a member “thrown into the common stock.” (d) Property acquired by all or any of the coparcener with the aid of joint family funds.
There is a lot of division and classification in Property. Before the enactment of Hindu law, there were two principal schools i.e. Mitakshara and Dayabhaga. Mitakshara School divides the property into two categories and the first one is Unobstructed Property and the second one is Obstructed Property. Further, after the enactment of Hindu law and the decline of both principal school, the Property is divided into two parts i.e. Joint Family Property and Separate Property under Hindu law.
The property to which right accrues not by birth but on the passing of the final owner is called obstructed property. It is called obstructed since the accrual of the right to it is obstructed by the existence of the final owner. Hence the property devolving on parents, brothers, nephews, uncles, etc. upon the passing of the last owner, is obstructed property. These relatives are not vested intrigued by birth. Their right to it arises only on the passing of the last owner.
In this way, any property acquired by a male Hindu from relations other than father, father’s father and father’s father’s father would be called obstructed heritage. The owner of this property holds the property as Separate and absolute one and there is no chance of combining property.
Obstructed property rights gained by the owner after the succession of the final owner but there are some exceptional cases where the ownership passes by survivorship. The exception cases were mentioned below:
- Two or more than two sons, grandsons, and great-grandsons succeeding as heirs to the separate property of their paternal ancestor take as joint tenants with survivorship.
- Two or more grandsons of a daughter who is a member of a joint family succeed as heirs to their maternal grandfather as joint tenants with the right of survivorship.
- Two or more widows succeeding as heirs of their husband take as joint tenants with survivorship rights.
- Two or more daughters succeeding as heirs of their father take as joint tenants.
These are the only 4 conditions or exceptional circumstances in which ownership of the obstructed property transfers to another before the succession of the previous owner.
An acquired the certain property from his brother who passed on issueless. The acquired property within the hands of A will be a discouraging legacy for the children of A. The children of A will acquire the property from A as it were after his passing.
The property in which an individual secures and is intrigued by birth is called unobstructed property. It is called unobstructed since the accrual of the right to it isn’t obstructed by the presence of the owner. Hence property inherited by a Hindu from his father, grandfather, and great grandfather is unobstructed heritage as regards his claim male issues, that is, his sons, son’s and son’s child. These rights arise on account of their birth in the family and the male descendants in whom the property vests, are called coparceners. Thus, the hereditary property in the hands of the final male owner is unobstructed.
‘A’ acquired certain property from his father. Two children born to A, M and N are coparceners with A. M and N will procure an interest by birth within the hereditary property of A. Thus the property within the hands of A is unhindered legacy, as the presence of the father is no obstacle or obstacle to his children procuring an intrigued by birth within the property.
It is seen that the distinction between obstructed and unobstructed property is recognized by the Mitakshara School and according to Dayabhaga School all the properties should be considered as Obstructed property because no one can inherit the property just after the birth or no one can have interest in another’s property by birth. This difference of thought of both the school demarcates Obstructed and Unobstructed Property.
Ancestral Property is also known as Self-acquired Property after the partition in a Joint Hindu family. As the name suggests Ancestral Property this property is automatically inherited to next-generation people. This Ancestral property was inherited till 3 generations or it is also considered as a part of Coparcenary property as it also includes property descended from father, great grandfather. Self-acquired property and the ancestral property is part of Separate property as above discussed.
Separate Property is the second category of property under Hindu law in which the property is inherited by the other members of non-blood relations.
In the case, Gurdip Kaur vs. Ghamand Singh Dewa Singh, 1965, the dictionary meaning of Ancestral Property is “Property which has been inherited from the ancestors” was accepted by the Court. It was also held that a property inherited from a father, father’s father or great grandfather is ancestral property.
A question arises that ‘who can acquire ancestral property?’ This was answered in the case of Arshnoor Singh vs. Harpal Kaur, 2019, it was held by the Hon’ble Supreme Court that “Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors up to three degrees above him, then his male legal heirs up to three degrees below him, would get an equal right as coparceners in that property.”
After the amendment and enforcement of the Hindu Succession Act in 2005, women were also allowed to enjoy the Self-acquired property or Ancestral property with equal rights but this right on the ancestral property was not earlier provided to the Women. Now, women and men have equal rights over their ancestral property. There are some incidents of Ancestral property which are mentioned below:
- The Ancestral Property should be for 4 generations old or we can say that ancestral property should be continued for four generations and should be inherited from generation to generation.
- The Ancestral Property should not be divided by the members and when the division takes place, the property becomes the self-acquired property.
- In the Ancestral Property, the person has the right or interest in the property right from birth.
- The ancestral property rights are controlled by per strip and not through per capita.
- The Shares in the ancestral property is first determined for each generation and then subdivided for the successive generation.
Joint family property
Joint family or coparcenary property is that property in which every coparcener has a joint interest or right and over that property, the coparcener has a joint possession. Or we can also say that the joint family property is the property which is jointly acquired by the member of the family with the aid of ancestral property.
Joint family Property defines as if any member of joint family property acquired in his own name in the presence of an ancestral nucleus. In V.D. Dhanwatey v. CIT, 1968, it was held that “The general doctrine of Hindu law is that property acquired by a Karta or a coparcener with the aid or assistance of joint family assets is impressed with the character of joint family property. To put it differently, it is an essential feature of a self-acquired property that it should have been acquired without assistance or aid of the joint family property. It is therefore clear that before an acquisition can be claimed to be separate property, it must be shown that it was made without any aid or assistance from the ancestral or joint family property.”
Many times it is believed that property possessed by members of a joint family is a Joint family property. In the case of Srinivas Krishna Rao Kango vs. Narayan Devji Kango, 1954, it was held that “The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that any property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact.
Some considered Coparcenary property and Joint family property as two different things but actually both are same under Hindu law.
The basic difference which is considered and said that both are different is that in joint family property, both males and females are considered as members whereas, In coparcenary, only male members are considered as a member. Female members have no right or interest in the property by birth in a Joint family but In Coparcenary, all members have equal right or interest in the property by birth.
These little differences make people think that both Joint family property and coparcenary are two different concepts otherwise it is considered as the same under Hindu law.
Property related matters are a serious concern or problem that is faced by the Indians. A lot of rules and amendments were made in order to lessen the number of disputes related to property matters and the government has also established many regulatory bodies which regulate the problem of property and classification of property under Hindu law and Hindu succession act.
Land dispute or property dispute is not something new dispute or conflict which arises in this generation. It has been prevalent since the very early period but there were no provisions of law that can regulate the conflict of property.
Another conclusion which can be derived from this whole article is that with the passage of time the status of female members or we can say that the rights of female members are secured in the different forms of property which were totally absent or neglected in the early period when there is no Indian succession Act, Hindu law and many others.
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