This article is written by Adhila Muhammed Arif, a student of Government Law College Thiruvananthapuram. This article explains the concept of ancestral property and how one can claim rights over it.
The word ‘property’ has its roots in the Latin word ‘properietat’, which means ‘something owned’. On the death of a property’s owner, the property does not get destroyed. The ownership is simply passed on to the owner’s legal heirs. In India, inheritance and succession of property are governed by personal laws. According to Hindu law, there are two types of property – joint family property and separate property. Joint family property, which is also called coparcenary property, is again classified into ancestral property, property jointly acquired by the coparceners of a family, and separate property blended into the joint family property. Ancestral property is the most common kind of joint family property. But in Muslim law and Christian law, there is no such distinction made. Ancestral property is treated the same as self-acquired property, and there is no concept of joint family property in Muslim law and Christian law.
The Hindu Succession Act, 1956 is the law that governs the inheritance laws among Hindus in India. It contains the provisions regarding the partition, distribution, and inheritance of both joint family property and separate property. The Act, however, has not defined the term ancestral property. Other relevant statutes that concern partition are the Partition Act, 1893, and the Civil Procedure Code, 1908.
Ancestral Property – Meaning
Ancestral property refers to the property inherited by a Hindu from his or her father, father’s father, or father’s father’s father by birth. It is basically the undivided property of a Hindu family of four generations. Property inherited from other relations is not considered to be ancestral property.
When it comes to property inherited from maternal grandfather, it is considered as separate property, and not ancestral property. This has been confirmed in the decisions of Md. Hussain v. Kisheva (1937) and Maktul v. Manbhari (1958). The share that is allotted to a coparcener on partition, loses the status of ancestral property and becomes a separate property. The property inherited from female ancestors is also to be treated as separate property.
Characteristics of an ancestral property
The following are the essential features of an ancestral property that distinguishes it from other kinds of property:
- It is held by four generations of a Hindu joint family.
- It should be an undivided property. Once a joint Hindu family property gets partitioned, each coparcener gets to treat his share as his separate property.
- The ownership is joint in nature. Four generations of a joint Hindu family have a joint interest and joint possession of it.
- One acquires a right in the ancestral property of his family by birth, and not by the death of their predecessors.
Who can claim ancestral property?
The term ‘coparcener’ refers to the title given to those members of a Hindu joint family that have an interest in the joint family property. The term ‘Karta’ refers to the father or the oldest male coparcener of the family, who has the right of possession and management of the property. In the case of Rohit Chauhan v. Surinder Singh & Ors (2013), the Supreme Court stated that coparcenary property essentially consists of the ancestral property of a family. The Court also provided the definition of a coparcener as someone who shares with others the inherited estate of a common ancestor equally. Coparcenary is the term for the narrow body of members of a joint family, who have an interest in the coparcenary property. The Court also defined the share of a coparcener as fluctuating, which changes with births and deaths in the coparcenary. The court also defined the interest of a coparcener in his or her property as ‘undivided’.
Only coparceners can claim rights over ancestral property. Other members of the joint family only have the right to claim maintenance. Since the non-coparcener members of a joint family have no interest in the ancestral property, they do not have the right to claim the ancestral property.
Conditions to be a coparcener
- Firstly, for a member to be a coparcener in the ancestral property, he or she must have inherited the property from his or her paternal ancestor.
- In a Hindu joint family, the ancestral property is held by four generations. Thus, the second condition is that such a member must belong to one of the four generations that come after the original owner, who owned it as separate property.
Rights of coparceners over ancestral property
Coparceners have the following rights over ancestral property:
- Right of joint possession and joint enjoyment of the ancestral property.
- Right to ask for accounts related to the management of the ancestral property.
- Right to alienate one’s share of interest in the property with the consent of other coparceners.
- Right to set aside the alienation done by Karta or any coparcener.
- Right to enforce partition or division of the ancestral property.
- Right to give up his interest in the property for other coparceners.
Do daughters have a claim over ancestral property?
The Hindu Succession (Amendment) Act, 2005 introduced some changes in Section 6 of the Act. Before the amendment, only male descendants could be coparceners to joint family property. With the amendment, even female descendants got the right to be coparceners and got the same rights and position as male coparceners. The amendment also brought other changes such as the change in the devolution of interest in joint family property on a coparcener’s death. Before the amendment, the devolution was by way of survivorship and the amendment modified it to devolution by testamentary or intestate succession. However, it is to be noted that the property inherited from female ancestors does not have the status of ancestral property. It will only be treated as separate property. Only the property inherited from paternal ancestors can have the status of ancestral property.
Can minors and children born after partition claim over ancestral property?
Minority is no exception to a coparcener’s right to claim ancestral property. Thus, if a partition agreement involved a minor coparcener, it is still binding unless the agreement was against the interests of the minor. Even children in the womb are not restricted from ancestral property being allotted to them. A share in the ancestral property can be reserved for children in the womb and if not, they can demand the partition to be reopened.
How to claim ancestral property
A coparcener can have a claim over the entire ancestral property of his family if he is the sole surviving coparcener of the family. When there are multiple coparceners, he is only entitled to one share of the property. A coparcener can claim his share by asking for the partition of the ancestral property.
Partition of ancestral property
Partition is effected by an unequivocal intention by any coparcener to divide the ancestral property.
Modes of partition
The following are the modes by which a coparcener can demand partition:
- Partition by suit
- Partition by arbitration
- Partition by family settlement
- Partition by a partition deed
- Partition by agreement
All the above modes of partition are legally recognized. However, partition deed and partition by suit are the most preferred modes for partition.
Partial partition of ancestral property
Generally, partition cannot be imposed on other people. Thus, in a situation where one or more coparceners want partition, and the others do not, the ones who want it can take their share in the ancestral property and own them as their separate property, while the others continue as coparceners on the remaining property.
Procedure followed in a suit for partition
One of the modes for partition of ancestral property is to file a civil suit in a court that has territorial or pecuniary jurisdiction. This mode is chosen when there is a dispute or disagreement. regarding the partition of ancestral property. The following are the steps involved-
- Filing a plaint: The first step is to file a complaint by the plaintiff, expressing his claims and cause of action. The document contains information about the name of the court, name and address of parties, facts related to the cause of action, description of the property, value of the subject matter, etc.
- Hearing: On the first day of the hearing, the court examines the merits of the case. If the court admits the suit, a legal notice will be issued to the defendants to present their arguments, and another date of hearing will be fixed.
- Written Statement: The defendant files a written statement acknowledging the legal notice, to disprove the plaintiff’s arguments in the plaint. The defendant will be allowed to have a period of 30 days to file a written statement, which can be extended to 90 days in certain circumstances.
- Replication by plaintiff: Then, the plaintiff has to reply to the written statement, denying all the allegations in it.
- Filing of relevant documents: Both the parties have an opportunity to file all the relevant documents related to the suit to substantiate their claims.
- Framing of issues: The court frames the issues on which the arguments of the plaintiff and defendant and the witnesses would be examined.
- Examination of witnesses: The witnesses are presented and examined before the court.
- Final hearing: On the day of the final hearing, the counsels of both plaintiff and defendant will argue for them on the basis of the issues framed, and the court would pass the final order.
- Certified copy of the final order: Then, the court will issue a certified copy of the order to the parties.
Executing a partition deed is another mode of partition of an ancestral property, which requires the consent of all the coparceners. A partition deed is needed to create a clear division of shares in the ancestral property. For a partition deed to be legally valid, it must be registered with the local sub-registrar in the area where the property is located. The parties to the deed must also pay the stamp duty and registration charges.
Reopening of partition
Usually, once an ancestral property is partitioned, it loses its undivided nature, and hence it becomes a separate property. In certain cases where there are slight inequities, for example, when some property was left out from partition, readjustment is possible. However, in certain exceptional cases where mere readjustment of assets is not possible, coparceners can sue for reopening ancestral property that was already partitioned. The following are the situations where a partitioned ancestral property can be reopened:
- Fraud, coercion, and undue influence: In cases where there were fraudulent and malicious practices while partitioning an ancestral property, the affected coparcener can ask for reopening of the partition.
- Disqualified coparcener: When the disqualification against such a coparcener is removed, he can file for reopening of partition.
- Child in the womb at the time of partition: This category of coparceners can also demand reopening of the partition if they had no share reserved for them.
- Minor coparcener: In instances where the partition was done in a manner that was against the interests of a minor coparcener, he can sue for reopening on attaining majority.
- Adopted child: If an adopted child did not have any share reserved for him, he is entitled to claim reopening of partition.
To conclude, ancestral property can be claimed only by coparcenary members of the four generations of a Hindu joint family who inherited it. It is also necessary that the property was inherited from the paternal ancestor of the claimant. Property inherited from female ancestors and maternal ancestors have the status of separate property. To claim a share in the ancestral property, there are various modes. It can be claimed through a verbal agreement with the other coparceners or through an informal family settlement. However, it is more suitable to execute a partition deed. When other coparceners are not willing, one can file a civil suit for partition. It is also possible to carry out partial partition where only the person claiming gets his share as his separate property, meanwhile the others continue to be coparceners to the remaining ancestral property. We can see this only in Hindu law. In other personal laws, there is no concept of ancestral property, and every property is treated as separate property.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: