This article has been written by Debapriya Biswas. The article explores the differences between ancestral property and inherited property, along with discussing the legal provisions and case laws highlighting these differences. Lastly, the article ends with frequently asked questions to simplify the concepts.
Table of Contents
Introduction
Property is an important asset as well as an aspect of the life of every individual. From being a source of income to being a place to live, the property holds quite a vast meaning, even beyond its basic definition.
The basic definition of property, as given in the case of R.C. Cooper vs. Union of India (1970), includes any asset, title or material that can be legally owned by someone. It can be movable (like a vehicle), immovable (like a house), tangible (like cash), or even intangible (like a trademark). With its definition as versatile as it is, this article will particularly focus on the concept of ancestral property and inherited property, highlighting the differences between the two.
Definition
To understand the differences between the two in a better manner, let us start with the meaning behind the terms ancestral property and inherited property.
Ancestral property
While not defined explicitly under any provision, the Hindu Succession Act 1956 covers the concept of ancestral property. Any property that is generationally inherited through only male ancestors is known as an ancestral property. For any property to become ancestral property, it needs to be passed on to at least four generations. That is, from great-grandfather to grandfather to father to son, all on the paternal side.
The concept of ancestral property is unique to Hindu law, making it a part of the Hindu Succession Act, which only applies to Hindus, Sikhs, Jains, and Buddhists. It is a type of coparcenary property, in which multiple people inherit the same property as a joint ownership. In its essence, an ancestral property is an undivided property with transferrable interest.
According to the Mitakshara school of law, the essential part of any ancestral property is that it passes through the male members of the family. While female heirs can now also claim ownership and interest, any ancestral property passed from the female heir to her children (male or otherwise) would not be qualified as ancestral property. Instead, it would be recognised as a separate property.
This was backed in the case of Muhammad Husain Khan v. Babu Kishva Nandan Sahai (1937), where it was held that any property passed down or inherited from the maternal side or the female line of descent would not be recognised as an ancestral property under Mitakshara law.
To simplify it, for any property to be recognised as an ancestral property, it shall have the following characteristics:
- It should be passed down through at least four generations.
- The right to property or the interest in the property itself shall be acquired by birth. In other words, the son shall have an interest in the ancestral property from birth, regardless of whether his father is alive at the time or not.
- The property shall not have been divided in a partition by the Hindu Joint Family. Partition of any ancestral property results in the divided property being recognised as a separate property of the individual.
- The ratio or percentage of interest in the ancestral property shall be determined on the basis of the subdivision of the amount of property inherited by the direct predecessor. In simpler terms, if the father inherits ⅓ of the property, then his two sons will inherit ⅙ each.
- Property inherited by will, gift, or any other method is not recognised as ancestral property.
- Property inherited from the maternal side or by anyone other than the direct male line of descent (father, father’s father, father’s father’s father, etc.) would not be recognised as ancestral property. Even a transfer of ownership of property from the brother would not be recognised as one. Instead, these properties would be recognised as separate properties.
- Separate or self-acquired property can only be recognised as ancestral property when they are added to the ancestral property and are enjoyed by the undivided family together.
Ancestral property as HUF property
While there are many similarities between a Hindu Undivided Family (HUF) property and an ancestral property, both are still treated differently in the legal context. The biggest difference between the two is ownership. The Karta is the head of a HUF property and has the responsibility to manage all the affairs pertaining to the property, including its sale, lease, or even mortgage. However, such is not the case in ancestral property, where the consent of all the legal heirs is required for any such decision.
In the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen (1986), the Supreme Court held that any immovable property passed down at least up to three generations or degrees may qualify as a HUF property automatically. As such, any member with an interest in that property would no longer remain in the position as prescribed under Section 8 of the Hindu Succession Act, 1956, which gives the position of a male heir in case of succession.
Later, in the case of Yudhishter v. Ashok Kumar (1987), the Supreme Court reiterated the judgement given in the previously mentioned case. It was held that after the enforcement of Section 8 of the Hindu Succession Act, any inheritance of the ancestral property shall not create an HUF property. In simpler terms, the ancestral property shall be recognised as a HUF property only if it was inherited before the enforcement of the Act in 1956 and continues to exist and be passed on even after. Any ancestral property created and passed on after that shall not be constituted as a HUF property.
Inherited property
Inherited property, as the term suggests, is the type of property that is passed onto an individual through the process of succession. In simple terms, this is a type of property that is usually transferred from one person to another after the death of the previous owner. The transfer can be through a testamentary will or another inheritance law.
Usually, inherited property is received by an individual after the death of a family member, regardless of whether it is from someone of direct lineage or not. Anyone from the maternal or paternal side can pass on such property, including brothers and sisters.
Every religion has its own law of inheritance, with the Hindu Succession Act covering the inheritance of Hindus, Sikhs, Jains, Buddhists, and Arya Samaj. Meanwhile, the Indian Succession Act, 1925, covers the law of inheritance for Christians and Parsis. On the other hand, the Islamic law of inheritance governs the Muslims, which does not differentiate between the inheritance of ancestral or separate property, making the laws for both types of property similar in nature.
Furthermore, the ancestral property received from the maternal side can also be classified as an inherited property, given how it would be separate. Usually, any personal property that was self-acquired and then transferred to the next generation upon the death of the owner falls under this category.
Legal implications of ownership
Along with the right to ownership, each property comes with its own legal implications that we will explore in detail.
Ancestral property
As stated earlier, ancestral property is a type of coparcenary property. The term ‘coparcener’ here refers to the legal heirs of the property who have an interest in or right to ownership in the ancestral property from the moment of their birth. This type of property is usually passed onto joint family members, where the property remains undivided while legal heirs enjoy their respective interests in the shares of the property.
As held by the Supreme Court in the case of Rohit Chauhan v. Surinder Singh & Ors (2013), all coparcenary properties usually consist of the ancestral property of the family that shall not be divided or partitioned if that status is to be maintained. The Court also defined a coparcener as an individual legal heir who inherits a common ancestral property alongside other coparceners. In simpler terms, a coparcener is a member of a joint family with an interest or right of ownership in the common ancestor property of the family.
Thus, only coparceners can claim any interest or right of ownership over an ancestral property. Other non-coparcener members (like the daughter-in-law) only have the right to claim maintenance, especially in case something happens to the coparcener they are related to. In simpler terms, non-coparcener members have no inherent interest in the ancestral property, because of which they cannot claim any right to ownership either.
On the other hand, if the coparcener is the only surviving legal heir of the ancestral property, he shall claim over the entire property. In the case of multiple coparceners, each legal heir is entitled to only one share of a property, which shall be proportionate to the number of coparceners in their generation. They can, however, claim their share by seeking a partition of the ancestral property.
While the ancestral property is mostly maintained and managed by the eldest male coparcener of the family, or ‘Karta’, all the coparceners have an equal say in the transfer or sale of the property. In simpler terms, the transfer of ownership of an ancestral property requires the consent of all the coparceners of the property. Without such a consensus, no sale or transfer can take place.
Furthermore, the right to ownership of an ancestral property is equal for both the father and the son. In simpler terms, both have a right to claim ownership of the ancestral property from birth. However, what differs is the share that is to be claimed, since the share of the son in the ancestral property directly depends on the determined share of the father. It is the father’s share that will be subdivided further among the son and his successive generations. Due to this, the interest of each successive generation diminishes due to the share determined by the first generation only getting subdivided into the next one.
Inherited property
The legal implications of ownership of an inherited property are much simpler than those of an ancestral property. Since the transfer of such property only needs the consent of the current owner, it can be transferred at any time and without any restrictions except the ones given in the legal provisions. The owner can sell, lease, mortgage, gift, or bequeath the property as per their own wishes.
The interest of a legal heir in an inherited property is not allotted from the moment of their birth, unlike ancestral property. Instead, it is formally declared through a testamentary will or agreement. The legal heir can even be disqualified as a successor. The owner of the property has complete right over who shall be their successor and the conditions for such succession.
Acquisition
Both ancestral property and inherited property have different methods of acquisition, which we will explore further below in a detailed manner.
Ancestral property
As explained earlier, ancestral property is any property or possession that is passed down from father to son for at least four generations. By this definition, we can conclude that the mode of acquisition of an ancestral property is usually by passing down the property after the death of the father. In simpler terms, it follows the succession of an undivided property, where the whole of it passes onto the son after the death of the father.
However, while the acquisition of ancestral property is not made until after the death of the current generation in possession, the next generation still has an interest and right in the property from the moment of his birth. In other words, a child acquires an interest in the ancestral property along with the right to inherit it from the very day they are born, as held in the case of Smt. Ass Kaur by L. Rs v. Kartar Singh By L.Rs. (2007).
Unless disqualified under Sections 25 to 28 of the Hindu Succession Act, all the heirs have an equal right over the ancestral property proportionate to the right of the previous generation on the property. All heirs, regardless of gender, can claim their rights over the ancestral property. There is no explicit time limit mentioned for the claiming of ancestral property under Hindu law.
Thus, it can be said that the heirs can claim their interest in the ancestral property at any time, given they have evidence to prove their right to the ancestral property and are not disqualified as an heir for succession.
Legal heirs can also relinquish or waive their right to ancestral property by giving a formal declaration of such waiver of the right to inheritance in favour of the other heirs besides them. Once such a declaration of relinquishment is made through a deed, the heir cannot claim any right over the ancestral property. Furthermore, the children, or even the children of the children of the heir, cannot claim any interest in the ancestral property due to the relinquishment of the rights. This was further clarified in the case of Elumalai @Venkatesan v. M. Kamala (2023), where the Supreme Court held that the relinquishment of the right to inheritance by the son will also extend to his successors by binding them through estoppel.
Usually, all heirs have an equal claim to the ancestral property, which remains undivided among the members. Due to this, any kind of transfer of the ancestral property needs to be approved by all the legal heirs. This includes a gift, sale, lease, mortgage, or even partition of the property. Any disagreements or discords between the heirs can be settled through court proceedings or alternate dispute resolution methods.
Inherited property
As defined earlier, inherited property is any property that is received by a person through a gift or testamentary will upon the death of the previous owner. It can be inherited from a family member, a distant relative, or any other beneficiary. Unlike ancestral property, inherited property can be transferred from both the maternal and paternal sides.
Under Hindu succession law, inherited property can usually be classified as a separate property that is acquired by an individual during their lifetime. In simpler words, it is a type of property that is neither acquired using the family funds nor is a part of the ancestral property. It is a self-acquired property.
Thus, given this definition, it can be said that the acquisition of inherited property is usually done by either a transfer of the property through sale or gift or by passing it down after the death of the previous owner through their testamentary will.
Let us take an example for better understanding. If a father transfers the ownership of his house, which is self-acquired in nature, to his son, then such property can be recognised as an inherited property. The transfer of such property can be by will, gift, or, in some cases, sale. However, it is not mandatory that only self-acquired property shall be transferred as inherited property. In certain circumstances, an ancestral property can also become an inherited property.
As noted earlier, the only property that can be identified as ancestral property is usually inherited by the male heirs for more than four generations. Therefore, any ancestral property that is passed down by a female heir to their children can be classified as an inherited property as opposed to an ancestral property.
This point of view was first addressed in the case of Muhammad Husain Khan v. Kishva Nandan Sahai (1937), where the question arose as to whether the son should have an interest from birth in the property that his father inherited from his maternal grandfather. The Bombay High Court had held that any ancestral property inherited from the maternal side would cease to be ancestral in nature and shall be treated as an inherited property upon succession.
This stance was iterated by the Supreme Court in the case of Maktul v. Mst. Manbhari (1958), where it was held that the Mitakshara school of Hindu law states that an ancestral property can only be passed down from a male ancestor to a male successor. In the case of a female ancestor, the ancestral property passed down to the next generation shall become a separate property.
This principle would also be followed in the case of any ancestral property passed from family members other than the father or direct male ancestor, such as brother, uncle, aunt, grandparents, wife, etc.
Limitations on acquisition
With major differences in the acquisition of an ancestral property from an inherited one, there are also quite a few differences in the limitations that such an acquisition brings. Let us study them in a more detailed manner.
Ancestral property
There are several limitations on the acquisition of ancestral property, some of which include:
Cannot be divided
Ancestral property, which must be passed through the male heirs for four generations, is usually jointly owned by the descendants of the family. Any division or partition of the property results in the property becoming a separate property. It is a type of coparcenary property in which multiple people inherit the same property as a joint owner. In its essence, an ancestral property is an undivided property with transferable interest.
Only passed through male heirs
While the female descendants also have an interest or right to claim over the ancestral property, any such property passed onto the next generation from a female heir is usually identified as a separate property rather than an ancestral one. Thus, to maintain the status of the ancestral property during its acquisition, it has to be passed from the father to the son.
Only claimed under Hindu law
As mentioned earlier, the concept of ancestral property is unique to Hindu law, which only extends to Hindus, Sikhs, Jains, and Buddhists. Thus, people practising other religions cannot acquire ancestral property under the Hindu Succession Act.
Cannot be sold without the consent of all heirs
For the sale, mortgage, lease, etc. of the ancestral property, the consent of all the legal heirs is required. Without the approval of all the heirs, any sale agreement of such nature would be voidable at the option of the legal heir whose permission was not sought. In cases of objection or disagreement, the legal heirs can initiate a suit in court to prevent the sale from taking place.
Depends on the status of the predecessor
In the case of ancestral property, if the predecessor has waived their interest or right to claim over the ancestral property, the successors also lose such a right by estoppel. Thus, the acquisition of ancestral property directly depends on how much right the predecessor has over the property.
Decreasing share with each generation
If the ancestral property remains the same, with no additional property added to it by the members, then the ownership right of the father stands equal to that of the son. However, with each passing generation, the share decreases with the increase in legal heirs. In other words, the interest or right of claim over the ancestral property is subdivided with each successive generation, which can result in the successive generations having a negligible share of the ancestral property.
For instance, if the ancestral property at present is 100 and the father (A) has two sons (B and C), both the sons will have over 50 each. However, the heirs of each son will have their share of that 50 instead of the total 100. In essence, C’s sons D and E will have 25 each, and their heirs will have to further divide that 25.
Thus, the share of each generation is determined by the predecessor’s share, which shall be subdivided among the future heirs.
Inherited property
In the case of inherited property, the limitations on acquisition include:
Not guaranteed
Unlike ancestral property, the acquisition of inherited property is not always guaranteed. Testamentary wills can be changed and legal heirs can be disqualified as per the inheritance laws. Furthermore, such property can also be transferred to those who may not identify as legal heirs through gifts, trusts, etc. under the Transfer of Property Act, 1882.
Contestation
The right to ownership of inherited property can be contested by the other legal heirs, especially in cases where the predecessor passed away interstate. Thus, the succession of such property can lead to lawsuits that may drag on for years without any proper settlement.
Legislations governing ancestral property and inherited property
Let us discuss the Acts and legal provisions dealing with ancestral and inherited properties.
Ancestral property
As mentioned earlier in the article, the concept of ancestral property only exists in Hindu law. In other personal laws, every property is either treated as separate property or has no difference from inherited property, as seen in Muslim law. Due to this, only the provisions of the Indian Succession Act, 1925, and the Hindu Succession Act, 1956, govern the laws relating to ancestral property. This includes the transfer and ownership of ancestral property.
Specifically, Section 6 of the Hindu Succession Act covers the aspect of coparcenary properties, under which ancestral properties are also covered. Other than this, the Transfer of Property Act, 1882, covers the transfer of property in general, which is also applicable to ancestral property.
Inherited property
Every religion has its own personal laws that dictate the succession of inheritance. For Hindu law, it is the Hindu Succession Act that covers the inheritance of Hindus, Sikhs, Jains, Buddhists, and Arya Samaj.
In the case of Muslim law, the Islamic law of inheritance is applied, which does not differentiate between inherited and ancestral property. Instead, Muslim law treats both types of property similarly, within the interpretation of the Quran.
Meanwhile, the Indian Succession Act covers the general laws of inheritance for Indian citizens, regardless of their religion and/or gender. It establishes legal provisions for both intestate and testamentary succession inheritance of property. Under this Act, Sections 31 to 49 can be interpreted to cover the law of inheritance for Christians, while Sections 50 to 56 cover the Parsi law of inheritance. Since there are no separate personal laws for the two relating to inheritance, the Indian Succession Act is interpreted accordingly.
Summarising the differences between ancestral property and inherited property
The differences between ancestral property and inherited property are summarised below:
| S.No | Basis of Differentiation | Ancestral property | Inherited property |
| 1 | Definition | Any property or possession that is passed down from the male line of descent for at least four generations. | A type of property that is usually passed onto an individual through the process of succession |
| 2 | Process of Succession | Passed from great-grandfather to grandfather to father to son, all on the male line of descent. | Passed from the owner to the successor usually after death, through a will or interstate. |
| 3 | When the interest is acquired | Interest in the ancestral property is acquired by the legal heir at the moment of birth. | Interest in inherited property is acquired upon transfer or agreement of transfer of the property. |
| 4 | Conditional transfer of ownership | No conditions can be imposed upon the transfer or creation of interest. Each coparcener has an equal interest in the property. | Conditions can be imposed upon the transfer of ownership of the property by the owner. If not completed, the transfer of ownership will become void. |
| 5 | Partition | Ancestral property shall stay undivided. If it is partitioned, the divided property loses its status as an ancestral property. | Inherited property can be partitioned. |
| 6 | Consent for transfer | All the coparceners or legal heirs need to consent for the transfer, sale or partition of the ancestral property. | Only the consent of the owner(s) of the inherited property is required for any kind of transfer, sale or division of the property. |
| 7 | Share of interest | With each generation the ancestral property is passed onto, the shares of each coparcener decrease. This happens since the share of each generation is determined by the predecessor’s share, which is subdivided further to the future descendants. | The share or ratio of interest over the inherited property is decided by the owner and their wish on how they would like to leave the property to the legal heir(s). |
| 8 | Governing laws | The concept of the ancestral property only exists in Hindu law, whose inheritance laws are governed by the Indian Succession Act, 1925, and the Hindu Succession Act, 1956. | Transfer of inherited property is covered under the Hindu Succession Act for Hindus, Sikhs, Jains, Buddhists and Arya Samaj. Muslims follow the Islamic law of inheritance, which is mostly uncodified, and the Indian Succession Act, 1925, covers the law of inheritance for Christians and Parsis. |
Conclusion
In the end, ancestral property, in its essence, is a type of coparcenary property, while inherited property can be classified as a separate property. With this as a major difference, the method of acquisition, its limitations, and the ownership of each property differ greatly. Even the tax treatment may differ greatly between the two, given how any income from ancestral property is often clubbed together for the purpose of tax while it is not the case for inherited property.
Thus, to simply and quickly remember the difference between the two, one only needs to understand their concept and the definition based on it.
Frequently Asked Questions (FAQs)
Is the consent of legal heirs required to sell ancestral property?
Yes, the sale of any ancestral property needs to be approved and consented to by all the legal heirs first, as per the laws of inheritance of any coparcenary property. Without the consensus, the sale would stand to be void.
Can ancestral property be claimed when the father is still alive?
Yes, both sons and daughters have a right of ownership in the ancestral property by birth and can claim it once they come of age. However, if the claim is made by division or partition, the property divided shall no longer be recognised as an ancestral property but as a separate or self-acquired property.
Can inherited property become ancestral property?
Given the right circumstances, yes. Any inherited property passed down for four generations can become ancestral property, given that the line of inheritance is through males and the property itself is jointly owned by the descendants, or the male heirs, who have been the sole heirs for the whole four generations. In such cases, personal property inherited for at least four generations without division can be classified as ancestral property.
References
- Mulla’s Principles of Hindu Law (15th Edition)
- Hindu Law by R.K. Agarwal (27th Edition)
- Bhavana, Amulya (2022). Ancestral Property and Its Significance in Contemporary Hindu Law. Jus Corpus LJ, 2, 846, available at: https://www.juscorpus.com/wp-content/uploads/2022/08/158.-Amulya-Bhavana.pdf
- Saxena, Poonam (2011) Property Law, LexisNexis.
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