Provisions relating to Ancestral Property Law

Provisions relating to Ancestral Property

 

Index:

  • Types of Properties
  • Ownership rights in ancestral property
  • Share of each generation in ancestral property
  • How many generations can claim ancestral property?
  • What is an undivided property?
  • Ancestral property laws
  • Share of father and son in ancestral property
  • What to do if you are refused a share in the ancestral property?
  • Will the properties received in the gift be ancestral property?
  • Do sons and daughters have full rights to ancestral property?
  • Rights of women in ancestral property
  • Right of heirs on the property without a will
  • Multiple heirs of property if the decision is not taken
  • To which court to file a case for partition?
  • No person is entirely free in the matter of ancestral property
  • Can a father sell his ancestral property?
  • Who can sell an ancestral property?
  • Deadline for claiming ancestral property
  • What is the difference between ancestral property and inherited property?
  • Son-in-law's right over his father-in-law's property

 

 

Types of properties

According to Hindu law, properties are divided into two parts: a self-acquired property and an ancestral property.

  1. Self-Acquired Property:
  • Self-acquired property is the property that a person acquires himself. There are many ways to acquire any asset, such as donation, sale, lottery, etc. If a person acquires property in any of these ways, it is said to be self-acquired.

 

  1. Ancestral Property:
  • The property inherited by any person is called ancestral property. In legal terms, the property inherited by men for four generations is called ancestral property.
  • The right to share in the ancestral property is acquired at birth. It is not unlike other forms of inheritance, where the property is inherited after the death of the owner. Any property belongs to one's ancestors and is passed down through generations.
  • The right to share in the ancestral property is available at the time of birth. This is not unlike other forms of inheritance, where the property is inherited after the death of the owner. Any property belongs to one's ancestors and is passed down through generations.
  • Ancestral properties are considered very special not only for their monetary benefits but also for their sentimental value. It is challenging to own and transfer such properties to large families.
  • This is because there are many misconceptions and myths about this property inheritance. Lack of knowledge is one of the main reasons why families get stuck in disputes or legal disputes.
  • Such ancestral property has been going on for centuries, like the property of many royals of India has been going on for centuries and is with the present heirs. When a person dies, when his property is transferred to his heirs after his death, that property becomes ancestral property for his heirs.
  • All heirs have equal rights in such ancestral property. No heir can sell the ancestral property of his own free will. The right to share in the ancestral property is acquired as soon as it is born.
  • If the ancestral property is sold or distributed, daughters will also get a share. After the division of the ancestral property, the share received by each heir becomes his own acquired property. At the same time, the property received by the mother will not be considered ancestral property.

 

Ownership rights in ancestral property:

  • In the case of ancestral property, the rights of the stakeholder start as soon as he is born.

 

Share of each generation in ancestral property:

  • The share is determined first, and the property acquired is redistributed in the share of subsequent generations. Each member's share in the ancestral property decreases as new members are added to the family.

 

How many generations can claim ancestral property?

  • Four generations of male descendants can claim classified ancestral property that has remained undivided. This means that the ancestral property of Rama is inherited by his son Shyam, Shyam's son Ghanshyam and Ghanshyam's son Radheshyam.
  • In other words, the father, grandfather, great-grandfather, and forefathers have the right to succession over the undivided ancestral property.

What is an undivided asset?

  • If Ram decides that the property will be divided between Shyam and his sons, the chain of the ancestral property will be broken, and the property inherited by Shyam will not be known as ancestral property but as self-acquired property.
  • In other words, for a property to remain ancestral, there should be no division for four generations. An ancestral property which has been divided through partition deed or family arrangement, the ancestral property ceases to exist as soon as the arrangement comes into force.
  • When there is a partition in a Hindu non-divided family, the family that gets the property becomes self-acquired.

 

Laws relating to ancestral properties:

  • Ancestral property Under the Hindu Succession Act, 1956, ancestral property is divided among Hindus, Sikhs, Jains, and Buddhists.
  • The case of Christians is governed by the Indian Succession Act, 1925.
  • In the case of Muslims, the Muslim Personal Law (Shariat) Application Act, 1937 applies.
  • Among Christians, the rules of succession and succession are the same for men and women. Further, his property is considered to be self-acquired, irrespective of its acquisition, and no one else can claim it during one's lifetime.

 

Share of father and son in ancestral property:

  • The Father (current owner of the ancestral property) and his son have equal rights over the property. However, the share of the first generation (father and his siblings) is decided first. Subsequent generations have to share the inheritance from the ancestors.

 

What to do if you are refused a share in the ancestral property?

  • If you have been denied a share in the ancestral property, you can send a legal notice to the opposition party. You can also file suit in the civil court to claim your share.
  • To ensure that the property is not sold during the pendency of the case, you can seek a stay from the court in the same case. If the property is sold without your consent, you will have to claim your share by adding that buyer as a party to the case.

 

Will the properties received in the gift be ancestral property?

  • The property which passes through a gift deed or will is not called ancestral property. Through a gift deed, the father can give any third party the property acquired during his lifetime. The ownership is transferred after the death of the donor through a will.

 

Do sons and daughters have full rights to ancestral property?

  • Any person is free to make a will and can exclude his sons or daughters from the property he has acquired.
  • In the year 2016, the Delhi High Court ruled that an adult son has no legal right over the property acquired by his parents.
  • The Delhi High Court said in its order, "In the house built by the parents, the son, whether married or unmarried, has no legal right over that house. He can live in that house only if his parents remain at his mercy for as long as his parents want."
  • However, this is not the case with ancestral property. A father has no option but to put his son out of possessing his ancestral property. However, the Delhi High Court ruled in November 2018 that aggrieved parents can evict their children from any property.
  • The High Court said the type of property should in no way act as a deterrent in the eviction of abused children and legal heirs from their elderly parents.
  • The word 'self-acquired' was dropped after the law was amended through the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Act 2017.
  • Now, seniors can evict their sons, daughters, and legal heirs of any property, whether immovable or movable, self-acquired or self-acquired, tangible or intangible.

 

Rights of women in ancestral property:

  • Before the amendment to the Hindu Succession Act 1956, women were not given rights in the ancestral property after marriage as they were not considered coparceners. The old laws deprived women of the status of a coparcener.
  • Amended through the Hindu Succession (Amendment) Act 2005, in which women were treated as coparceners. Now both sons and daughters were considered coparceners in the family and had equal rights on the property. Even after marriage, the daughter will remain a coparcener on the property.
  • It was said that daughters have equal rights to sons in ancestral property. But the Supreme Court said that to implement this provision, both the daughter and the father must be alive till 9 September 2005.

 

Right of heirs on the property without a will:

  • If a person dies without a will, his property passes to his heirs. In this case, both the Hindu Succession Act and the Indian Succession Act apply.
  • In the case of Muslims, their own Sharia law applies. The Hindu Succession Act and the Indian Succession Act both of these Acts mention relations to the heirs.
  • The heirs of a Hindu man are his widowed wife, mother, and her sons and daughters. Along with this, the children born of sons and daughters also come in succession for the next three generations.

 

Multiple heirs of property if the decision is not made:

  • As if an individual owned the farm and that person dies. After that, the inheritance of that farm goes to his sons and daughters. His sons and daughters do not make any decisions about that farm in their life, and they also die. Then the right of that property goes to the heirs of those sons and daughters.
  • He also does not take any decisions regarding the property during his lifetime; even if he dies, the property gets transferred to his heirs. In this way, a farm gets many heirs in the future. Because gradually, the family goes on expanding.

 

In which court to file suit for partition?

  • The distribution of agricultural land takes place in the Revenue Court, before the Collector of the district.
  • Whereas the division of urban land is done in the civil court, whose jurisdiction lies with the district judge. The District Judge decides the allotment of such land.
  • After the partition, the land is distributed to all the people in proportion to their share, and they are made the actual land owners. Then this ancestral property ceases to be their ancestral property but becomes their acquired property.
  • The person is not free to take any decision regarding such acquired property as his heirs also have rights over such property. If he has more than one heir, then a decision regarding that property can be taken only with their consent.

 

No person wholly independent in the matter of ancestral property:

  • As if a property X was inherited from his father. The property is registered in X's name, but here X is not in a position to decide on the property.
  • Rather, X's heirs, his children, settle the property. X cannot take any decision alone, if he has a son or daughter, then their consent is also taken, and the property will be recorded in the son and daughter's name along with X.
  • All these things prove that no person is entirely free regarding ancestral property. Rather, all his heirs have equal rights over the ancestral property. Any decision regarding that property can be taken only with the consent of everyone.

 

Can a father sell his ancestral property?

  • If the ancestral property remains undivided, the father cannot sell his ancestral property without the consent of the heirs. If a father with two sons inherits ancestral property from his father, the grandchildren also have a share in the property, and the father cannot sell it without the sons' consent.

 

Who can sell an ancestral property?

  • Under Hindu law, the head of the Hindu Undivided Family (HUF) oversees the family's property. Ancestral property cannot be sold by sole decision of one or part-owners, as there is a claim of four generations on such property.
  • But ancestral property can be sold in exceptional circumstances, such as during a family crisis (legal necessity), for the benefit of the family, or during a religious function. However, if the property is to be sold, each stakeholder must agree and sign the relevant documents. If even one family member disagrees, the property cannot be sold.
  • If someone tries to sell the property without proper consent forms, the remaining stakeholders can take legal action and prevent the sale.
  • Ancestral property has always been valued and sentimental, which is why families find it difficult to maintain their rights. Sometimes, the ancestral property holds families together and creates better bonds.

 

Deadline for claiming ancestral property:

  • The time limit for claiming the ancestral property is around 12 years. However, the court may accept it and process your request if there is a valid reason for delaying the claim.
  • If one wants to file a civil suit to restrain the sale of ancestral property, it must be done within three years of the sale period.

 

What is the difference between ancestral property and inherited property?

  • Inherited property is any property you receive through a will or as a gift after the owner's death. Ancestral property is inherited from birth. Ancestral property may be received from a family member.
  • However, you should be aware that the property you inherited from your mother, grandmother, uncle, brother, or other family members does not qualify as ancestral property. The only property passed down from your father, grandfather, great-grandfather, and great-grandfather qualifies as ancestral property.
  • Also, any property the son receives as a gift from the father or grandfather will not qualify as ancestral property.

 

Right of son-in-law over his father-in-law's property:

  • No son-in-law can claim right over his father-in-law's property under any circumstances. He can give money to the father-in-law for the construction of the property or take care of his property in his absence. But the son-in-law cannot have any claim on the father-in-law's property as he is not a part of the family.

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