A property that belongs to one’s great-great-grandfather and remains undivided for four generations of male lineage to lay claim over it can be called ancestral property. The ancestral property law in India consists of various conditions, rights, and amendments, which are crucial to know when dealing with this immovable asset. So, we’ve listed out all the facts below for you to discover the nuances of the ancestral property inheritance in our country today.
An undivided property that is inherited via the father or grandfather qualifies as ancestral property. On the other hand, any property inherited through the mother, grandmother, brother, or even uncle cannot be called ancestral property.
A property that is divided via a partition deed or family arrangement ceases to be an ancestral property after it. According to Indian laws, if the users of the “Hindu Undivided Family” divide the property, each coparcener’s share of portion now becomes a self-acquired property.
An undivided ancestral property can only be sold if the consent of each stakeholder is obtained before it. In case one member (such as the Head of the Hindu Undivided Family) decides to sell the property without consulting with other stakeholders, a legal notice could be sent to the offending party.
If a property is acquired by way of a gift deed or through the execution of a will, it does not qualify as ancestral property.
An important point to note is that rights in the ancestral property are determined per stripes. This means that the share of each generation is first divided and then the successive generation shares are subdivided. Rather than a per capita distribution that equally divides the property, the per stripes approach uses a generational approach so that each generation inherits from its predecessors. Know more about the difference between the two here.
Due to the per stripes approach, the share of each member is constantly decreasing as newer members from successive generations keep getting added as coparceners. This means that at some point, one’s share in an ancestral property may become insignificant, and not worthy enough to pursue in court.
In case of a self acquired property, a father is free to exclude one’s offspring from the will. This is because the children do not own any legal rights to their parent’s self-acquired property and their rights arise only after the death of the owner as per the execution of the will. On the other hand, the right to a share in an ancestral property comes into effect by birth itself. Hence, ancestral property rights allow children to automatically become coparceners in the Hindu Undivided Family.
However there is one exception to the above mentioned rule. In December 2018, the Delhi High Court ruled that ill-treated and harassed parents can evict their children from any type of property! The court stated that it would not deter elderly parents from resorting to such an action, even if it was an ancestral property.
The old Indian laws did not allow women to enjoy rights on ancestral property after marriage. However, after the amendment in the succession law through the Hindu Succession (Amendment) Act, 2005, women are now given status as coparceners. This means that daughters too can lay a claim to ancestral property, if their father has passed away after the amendment act came into effect in 2005.
The laws listed under the Hindu Succession Act, 1956 are for Hindus, Sikhs, Jains, and Buddhists. For christians, the rules from the Indian Succession Law, 1925 come into effect where all property is treated as self acquired and the inheritance rules are the same for men and women.
In case of muslims, provisions of the Muslim Personal Law (Shariat) Application Act, 1937, apply to inheriting ancestral property. Here, there are two types of heirs – sharers (entitled to a share in the property of the deceased) and residuary (inherits their share only after the sharers have taken their share)
At Ashwin Sheth Group – we believe that having such necessary information helps one understand their rights to an ancestral property. A clear knowledge of these laws also ensures that one does not hold any misconceptions or gets dragged into legal battles in the long run.