This article is written by Sonia Balhara, from Sushant University, Gurgaon. This article deals with all the information about the ancestral property and the decisions have been taken by Courts for an ancestral property.

Introduction

The property holds a particular and more expanded meaning in its real understanding. It not only includes the cash and only the opposite tangible things but it also includes intangible rights that are considered as a source of income. The share which someone has in lands and wealth to the omission of others and its usually to enjoy and to lose certain things most supremely as he wants to be provided he makes no use of them restrained by the law. The sea and also the air, can not be appropriated; one may appreciate them, but nobody has any prerequisite over it. When things are completely ours, or when everyone else is barred from associating with them or disturbing those who are close to them, no one aside from the proprietor, who has this prerequisite, can have any claim either to use them or to forestall him from getting rid of them, as he satisfies. And the reason behind this is that the property, considered as a prerogative to things. Contained not because it was a right to utilize those things, but the right to use those things to spread them by changing or giving them to someone else, without thinking, or even throwing them away.

Concept of ancestral property

Ancestral property is additionally referred to as self-acquired property after the partition during a joint Hindu family. Because the name indicates that the ancestral property, this type of property is automatically acquired to next-generation people. This ancestral property was inherited until three generations or it’s also considered as part of coparcenary property because it also includes property descended from father, great grandparent. Self-acquired property and also the ancestral property is an element of separate property as above discussed. Separate property is that the second category of property under Hindu law within which the property is inherited by the opposite members of non-blood relations. The meaning of ancestral property in dictionaries is a property which has been acquired from the parents and is accepted by the court, it was also held that a property inherited from father, or grandparent is called ancestral property.

A question arises that ‘who can acquire ancestral property?’ this was answered within the case of Arshnoor Singh v. Harpal Kaur, 2019, it was held by the Hon’ble Supreme Court that under the Mitakshara Law, whenever a male ancestor acquires any land from any of his father’s ancestors up to a few degrees above him, then his legal heirs about three degrees below him, receives equal rights as coparceners therein property. After the amendment and enforcement of the Hindu Succession Act in 2005, women were also allowed to enjoy their self-acquired property or ancestral property with equal rights but those ancestral property rights could not be granted to women before. Now, women and men have equal rights over their ancestral property. There are some incidents of the ancestral property mentioned below: 

• The ancestral property must belong to four generations or we can say that ancestral property must be continued for four generations and passed down from generation to generation.
• The ancestral property should not be divided by the members and when the division occurs, the property becomes the acquired property.
• In the case of ancestral property, a person has the rights or interests within the ownership from birth. 
• The ancestral property rights are controlled by per strips and not by each capita. The shares within the ancestral property are first determined for each and every generation and divided for the next generation.
• Moreover, properties acquired from mother, grandmother, uncle, or even brother are not the ancestor properties. And property inherited by will and gift also is not ancestral property. Ancestor property can become ancestor property whereas if is thrown into the pool of ancestor one and enjoyed in common.  
• Any property gifted by a father to his son cannot become an ancestor within the hands of the son thanks to the straightforward reason of the fact he got it from his father.
• According to Hindu Succession Amendment Act, 2005, every daughter, whether married or unmarried are considered as a member of her father’s HUF (Hindu Undivided Family) and even be appointed as ‘Karta’.
• Clarifying later, within the year 2005, the Supreme Court passed an amendment of the Hindu Succession Act of 1956. Now, the amendment granted daughters the correct to inherit ancestral property together with their male relatives.

In the case Commissioner of Wealth Tax, Kanpur Others v. Chander Sen Others, 1986 3 SCC 567, it was held that after passing at the Hindu Succession Act, 1956 the standard view that on the legacy of stable property from paternal ancestors up to three degrees, automatically on HUF (Hindu Undivided Family) came into existence, now not remained as the legal position onsight of Section 8 of the Hindu Succession Act, 1956.

In the case of Yudhister v. Ashok Kumar, 1987 1 SCC 204 by following the amendment and enforcement of the Hindu Succession Act in 2005, women were also allowed to enjoy their ancestral property with equal rights but those ancestral property rights had not been granted to women before. Now, women and men have equal rights over their ancestral property. There are certain conditions of the ancestral property if the inheritance is before 1956 then it is not a HUF property. In such cases, since a HUF (Hindu Undivided Family) already existed before 1956, thereafter, as the same HUF with its structures continues, the status of HUF (Hindu Undivided Family) continues, and in such a case only, members of joint Hindu family are coparceners give them the opportunity to a share within the HUF (Hindu Undivided Family) premises.

Types of ancestral property

Property inherited from a paternal ancestor

Property inherited by a Hindu male from his father, paternal grandfather, and so on is ancestral property. The children, grandchildren, and great-grandchildren of the person who receives a share in it by birth.

Therefore, the word ancestral property is refined into a diminished property of a father from his male ancestor in the male line, and in that right only there are sons and now, the daughters also receive a share together with, and equal to that of, their father. Property received from other relatives would, therefore, not be ancestral property. 

Property inherited from a maternal grandfather

The principle of Hindu law ruling property acquired from a matrilineal grandfather is reflected in the following two decisions of the privy council.

In Venkayamma v. Venkataraman Amma (1905 25 mad. 678), two siblings who were living together as a joint family received some property from their matrilineal grandfather. When one of them died, leaving the widow behind, the question was, did his share in the property go to the widow or to his surviving brother? The secret service committee stated that the property which the brothers had acquired was a joint or communal property in their hands and that the undivided share of the dead passed, at his death, for his surviving brother, and not to the widow.

However, in a recent ruling Mohammad Hussain Khan v. Babu Krishna Nandan Sahai 1937 64 I.A.250, the privy council reversed the earlier decision and stated that such property is not ancestral property. The impact of this resolution is that property acquired by a daughter’s son from his maternal grandmother is not ancestral property in his hands, but is his own separate property.

Property inherited from partners or from women

As noted above, the only property that can be called ancestral property is that which is inherited by a person from his father, father’s father, and this process goes on. Therefore, the property shared by a person from his partners such as brother, uncle, etc., or property inherited by him from a female, for example, his mother, will be his separate property.

Share allotted on a partition

The allocation received by the paper commissioner from the list of ancestral property complaints regarding his or her problems. They take a share in it by birth, whether they are in continuation at the time of the division or are born consequently, in the case of other relatives, such as a share is a separate asset, therefore if the coparcener dies without dropping any issue, it will pass to his successors by continuation.

Property received by gift or pleasure from a paternal ancestor

Where a Hindu makes a gift of his own self-acquired or separate property to his son or gives it to him under the will, the question that arises as to whether such property is a separate property of the son, or whether it belongs to his ancestors. This question had been answered differently by the several High Courts, as a result of which there has been a great divergence of judicial opinion on this particular subject. However, the Supreme Court has now expressed its view on this particular point in Arunachala Mudaliar v. Muruganantha (1954 S.C.R. 243). The Court noted that it is not possible to assume that such property should, under all circumstances, be placed as ancestral property in the hands of that manager. Instead, it should be obvious that the giver intended that the giver should take it personally or that the gift could belong to the family bench.

This decision of the Supreme Court, therefore, makes it clear that there is no way of thinking; it is a true question in each case, the decisions after considering all the circumstances of the case.

Rules set down by the Delhi High Court

In the case Surender Kumar v. Dhani Ram CS (OS) No: 1737/2012, Hon’ble Justice Valmiki J. Mehta ruled that-

• The only way the HUF (Hindu Undivided Family) could exist after 1956 if someone’s property was thrown into a typical hotchpotch.

Also, once the goods are thrown into a hotchpotch, then it’s necessary to specify the exact date/ month/ year etc, of the construction of HUF (Hindu Undivided Family) for the first time by throwing the goods into a common hotchpotch need to be clearly prepared for transparent repairs and legal requirement thanks to Order VI Rule of the CPC that provides all factual details of the reason for action should be clearly stated. Therefore, if the property of the HUF (Hindu Undivided Family) endures as a result of such work by throwing the property acquired in a common hotchpotch, consequently there’s entitlement in coparceners etc, to participate in such HUF (Hindu Undivided Family) property.

• A HUF (Hindu Undivided Family) may subsist if paternal ancestral properties are acquired before 1956, and such a status of the parties does not mean that the properties have continued after 1956 with concern to property inherited before 1956 from the paternal ancestors. Once that status and attitude proceeds even after 1956 of the HUF and of its existing properties; a coparcener etc will be entitled to inquire division of the properties.
• Even before 1956, a HUF (Hindu Undivided Family) can obtain actuality even without the inheritance of ancestral property from their ancestors as may the HUF could be formed before 1956 by throwing an individual into a typical hotchpotch. If such a HUF resumes even after 1956, then in such a case a coparcener etc, of a HUF was empowered to separate the HUF property. 

Laws laid down by the Supreme Court

The law in so far as it applies to joint family property administered by the Mitakshara School, before the amendment of 2005, could, therefore, be reviewed as:

• When a male Hindu dies after the origin of the Hindi Succession Act, 1956, at the time of his death he was interested in Mitakshara coparcenary property, his share in the property will devolve by survivorship against the surviving members of the coparcenary (under Section 6) the statement, an omission is held in Section 30 summary of the act making it open that however and whatever is contained in the act, the interest of the Hindu man in Mitakshara coparcenary property is a property that can be influenced by him by will or other testamentary settlement.
• A second exemption engrafted on the statement is held in the provision to section 6, which states that if such male Hindu had died leaving behind a female relative designated that a male relative is defined in Class I schedule who insists through such female relative bearing him, then the interest of the dead in the coparcenary property would devolve by interstate sequence, and not by survivorship.
• To manage the share of the Hindu male coparcener who is charged off under Section 6 of the provision, a separation is made by the application of law prior to his death. In this separation, all the coparceners and the Hindu male widow get a share in the joint family property.
• On the statement of section 8 of this act, either as a result of the death of a Hindu male leaving the self-acquired property or by the application of section 6 provision, such property would devolve only by intestacy and not survivorship.
• On a joint reading of Sections 4, 8 and 19 of this act, after the joint family property has been classified under section 8 on the principles of solidarity, the joint family property terminates to be joint family property in the hands of the many successful people as they hold the property as renters in common and not as joint tenants.

Conclusion

Law relating to a blending of separate property with joint family is well settled. Separated property or self-acquired of a member of a joint Hindu family may be impressed by the character of a joint family property if he or she voluntarily throws the owner into the common cell to abandon his separate claim on it but a clear intention to waive separate rights must be established. It is a determining principle of Hindu law that there is a legal conjecture that every Hindu family participates in meal, prayer, and estate and in the lack of any proof of separation, such legal reunion continues to be applied in the family. The burden lies upon the member who after strengthening the existence of a joint venture in the family properties states his claim that some property came out with his ancestral property is his self-acquired property.

An individual gets a share in the ancestral property by birth. In the case of self-acquired property, an individual can inherit when the owner of the property dies. If the father owns the property and it is an ancestral property, then he has the right to release his son/ daughter to inherit the property which he/ she took. The Hindu Succession Act, which governs with intestate succession till today it recognizes the existence of joint Hindu family Mitakshara law. The eminent point is that the property which is converted to a Hindu on the death of his father in the past after coming into the force of Hindu Succession Act, 1956 did not constitute HUF property but according to Supreme court judgement in which it is mentioned that HUF properties are abolished due to section 8 of the Hindu Succession Act.

On the hand, the Supreme Court judgements also laid down two expectations:

• Firstly, HUF property remains to continue in case of HUF continues and persists before and after 1956, and
• Secondly, after 1956, a person who owns the self-acquired property throws such property into a common hotchpotch.

Therefore, the old concept of joint Hindu family property is still to be maintained along with the Hindu Succession Act, 1956. Most importantly it will be safer to say that the person who acquires a share by birth in joint family property or coparcenary property are sons, grandsons, and great-grandsons of the owners of the joint property. These all are joint owners/coparceners.

But to sum up our discussion on this topic we can only article that the concept of the “ancestral” property is vast and complex, no clear distinction has been given till date by the courts on what is ancestral property, joint family property or self-acquired property as these can include in each other only based on the facts and circumstances of cases.

References

• https://www.makaan.com/iq/legal-taxes-laws/how-to-claim-your-share-in-an-ancestral-property#:~:text=Legally%20speaking%2C%20an%20ancestral%20property,the%20death%20of%20the%20owner.
• https://www.relakhs.com/ancestral-property-legal-rules/
• https://timesofindia.indiatimes.com/business/india-business/11-facts-about-ancestral-property-you-must-know/articleshow/61684720.cms
• https://www.indianbarassociation.org/concepts-of-ancestral-property/

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