ANCESTRAL PROPERTY-ALL YOU NEED TO KNOW-COMPILED BY ER AVINASH KULKARNI

ANCESTRAL PROPERTY-ALL YOU NEED TO KNOW-COMPILED BY ER AVINASH KULKARNI

 

Saturday Brain Storming Thought (112) 08/05/2021

COMPILED BY ER AVINASH KULKARNI

ANCESTRAL PROPERTY

Ancestral property is defined as one that is inherited up to four generations of male lineage and should have remained undivided throughout this period

For descendants, be it daughter or son, an equal share in such property accrues by birth itself

Legal heirs of ancestral property

The sons and daughters (which includes of any son or daughter who are not alive) and the husband, the heirs of her husband, to her mother and father, to the heirs of her father

Facts about Ancestral Property

1) ancestral property should have remained undivided till the fourth generation upwards ie father, grandfather, great grandfather and great-great grandfather

2) any right to a share in such a property accrues by birth itself

3) Ancestral property could include self-acquired properly as well, this is a matter that is determined on the basis of facts and circumstances of a case

4) any property divided through a partition deed, family agreements etc loses its ancestral character

5) the rights in ancestral property are determined per stripes and not per capita, ie share of each generation is first determined and the successive generations shares in turn is sub-divided
Each generation inherits from its predecessors

6) properties inherited from mother, grandmother, uncle and even brother is not ancestral property

7) property inherited through Will or Gift are not ancestral property

8) Self-acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in common

9) property gifted by a father to his son cannot become ancestral property in the hands of son simply by reason of the fact that he got it from father

10) in year 2005, daughters too got a right in ancestral property, clarifying later, the Supreme Court had said that a daughters right to ancestral property does not arise if the father died before the amendment of the Hindu Law came into force in 2005

11) with respect to the property law, a son may be disinherited from the self acquired property of the father, but he will still have equal rights over ancestral of the coparcenary property of HUF

Can father deny ancestral property to son

Father cannot deny ancestral property to son

Ancestral property cannot be given away to one child to the exclusion of orthers

Father can not will the ancestral property

Types of Ancestral Property

1) property inherited from a parental ancestor

Property received from other relatives are not ancestral property

2) property inherited from a maternal grandfather

Property acquired by a daughters son from his maternal grandmother is not ancestral property

3) property inherited from partners or from women

It will be his separate property and cannot be called as ancestral property

4) share alloted on a partition

If the coparcener dies without dropping any issue, it will pass to his successors by continuation

5) property received by gift or pleasure from a paternal ancestor

The property can be treated as separate or ancestral property after considering all the circumstances of the case

Can illegitimate children inherit ancestral property

They can only acquire a share in self-acquired property and not in the ancestral property

Ancestral property under Muslim Law

Under Muslim Law, there is no concept of ancestral property or right of inheritance by birth

A person can leave behind a will on any type of property

The legal heir can inherit any type of property only on death of the owner of the property

Ancestral property under Christianity

The succession rules amongst the Indian Christians is governed by the Indian Succession Act 1925

There is no concept of ancestral property under the Indian Succession Act

All types of properties owned by Indian Christian can be willed away by him/her by executing a will

Selling of ancestral property by father

Ancestral property cannot be sold without consent of successors in case of major and in case of minority you might have to take permission from the court

If property is disposed without consent, it can be reclaimed

The husband can sell the property without taking consent to wife

The mother can sell the ancestral property of it is registered in her name

Mother does not need to seek permission from her adult children

Time limit to claim ancestral property

According to section 109 of law of limitation, a Hindu governed by Mitakshara Law, within 12 years from the date on which the alien has taken possession of property and date on which property sold

Claim in ancestral property

If you have been denied a share in your ancestral property, you can send a legal notice to the acquiring party

You can also file a suit for partition in the civil court, claiming your share

To ensure that the properties are not sold when the matter is sub-judice, you may seek injunction from the court in the same suit

An Ancestral property becomes self acquired property after its partition

Compiled by:-

Avinash Kulkarni

Chartered Engineer
Govt Regd Valuer
IBBI Regd Valuer

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