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Ancestral Property & Complications

An ancestral property is a property or a land parcel that belonged to one’s ancestors. Legally speaking, an ancestral property is the one which is inherited up to 4 generations of male lineage. The right to a share in an ancestral property accrues by birth itself, unlike other forms of inheritance, where legacy opens upon the death of the owner.

Characteristics of Ancestral Property

1. The ancestral property should be 4 generations old.

2. The property should not have been divided by the members. When the division/partition happens, it becomes the self-acquired property and not ancestral property.

3. The person has the right over the property right from the birth. The right to a share in ancestral or coparcenary property accrues by birth itself, unlike other forms of inheritance, where inheritance happens only on the death of the owner.

4. The ancestral property rights are controlled by per stripes and not by per capita. The shares are first determined for each generation and subdivided for the successive generation.

5. Share of each successive generations are in turn subdivided what has been inherited by their respective predecessor.

6. Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties.

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

Classification of Ancestral Property

The property under Hindu Law can be classified under two heads:-

· Coparcenary property; and

· Separate property.

Coparcenary property is again divisible into:-

· ancestral property and

· Joint family property which is not ancestral.

This latter kind of property consists of property acquired with the aid of ancestral property and property acquired by the individual coparcener without such aid but treated by them as property of the whole family.

1) Property from paternal ancestors: In this situation, the Hindu male inherits the property from his father, father’s father, father’s father’s father. In other words, property acquired from any one of the 3 immediate paternal ancestors. Such property is considered as ancestral property.

2) Property from maternal ancestors: Any ancestral property inherited from the maternal ancestors is termed as separate property and not ancestral property.

3) Property from the females: Any property inherited by the females of the house doesn’t come under the ancestral property. The property brought by women is considered as her separate property.

4) Property obtained through Gift/Will from paternal ancestors: When a property is obtained by gift/Will from his ancestors, it can be either considered as ancestral or self-acquired property. It depends on the intention of the ancestors as mentioned in the Gift Deed/Will. If the ancestors make a condition that the inheritor should take the property for the benefit of the family, then it is ancestral property. If no condition is made, it is considered as a separate property.

5) Other property: Any property which is bought from the income of the ancestral property is known as ancestral property. So anything purchased with the assistance of ancestral property is also called as ancestral property. The children, grandchildren, great-grandchildren possess an interest over the income and accretion even before their birth.

Normally, Will cannot be made of ancestral property but if a coparcener acquires his share in ancestral property than he can make a will of his share and bequest it to all coparceners.

Sec 26 of Hindu Succession Act provides that, if a person is converted into other religion, he still has rights over ancestral property. The person has the birthright over such property, so the conversion cannot stop from claiming the property. The illegitimate child cannot claim any rights over ancestral property.

An ancestral property cannot be gifted. Every legal heir is entitled to have an equal share in the ancestral property. After 2005 daughters of the Hindu undivided family have equal rights to ancestral property.

Who can sell an ancestral property?

While the head of a Hindu undivided family (HUF) has the power to manage the family assets under the Hindu law, an ancestral property cannot be sold by the sole decision of one or part owners, since four generations have their claim over such a property. The consent of each stakeholder will be required, to sell an undivided ancestral property. All coparceners, including daughters, can seek partition and sale of the ancestral property.

What is the right of a wife in her husband’s ancestral property?

Under the Hindu law, the wife of a man is entitled to get a share in her husband’s ancestral property in the capacity of his Class-I heir after his demise.

Under Muslim law, there is no concept of coparcener property, so ancestral property doesn’t exist. Under the Muslim law, there are two types of heirs – the sharers, who are entitled to a certain share in the deceased’s property and the residuary, who takes up the share in the property that is left over after the sharers have taken their share.

The Christian law is governed by the Indian Succession Act and there are no provisions for the ancestral property. In both these laws, person can inherit their property either by Will/gift or after their death and the legal heir can inherit their property. Among Christians, the inheritance and succession rules treat men and women equally. Also, their property is treated as self-acquired, in spite of its mode of acquisition and during one’s lifetime, nobody else can contest for it.

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