Ancestral property claim in India

Law
30-Jun-2022
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In India, claiming ancestral property can be a complex process that is governed by personal laws and various legal statutes. Ancestral property refers to property that has been inherited from an individual's ancestors and can be joint family property or separate property. The Hindu Succession Act, of 1956 governs inheritance laws among Hindus in India and contains provisions regarding the partition, distribution, and inheritance of both joint family property and separate property. However, the Act does not define the term ancestral property. This article provides an understanding of the legal provisions, eligibility criteria, documentation, and procedures for resolving any disputes that may arise due to ancestral property.

Importance of claiming ancestral property

Claiming ancestral property in India is not just a legal right but also a human right. In many cases, ancestral property is the only means of livelihood for many families, and the denial of this property can lead to severe financial and emotional hardship. Additionally, the inheritance of property is an important aspect of many cultures and traditions in India, and claiming it can help maintain the continuity of these customs. By claiming ancestral property, individuals can ensure that their legal rights are upheld and that they can receive their rightful share of family property.

Understanding Ancestral Property

Ancestral property is a property that Hindus inherit from their forefathers. It must be at least four generations old and have not been divided by the joint Hindu family. Inheritance rights in ancestral property are first determined and then subdivided by their successors. Property inherited from a mother, grandmother, uncle, brother, will, or gift is not ancestral property. Self-acquired property can become ancestral if it is thrown into the pool of ancestral properties and enjoyed in common.

What is an Ancestral Property?

In India, ancestral property is a term that is commonly used to refer to property that has been passed down from one generation to another within a family. It is an important aspect of inheritance and succession law in India and is governed by various legal provisions. Ancestral property is a property that is inherited by an individual from their male lineage. It includes both movable and immovable assets, such as land, houses, businesses, and investments. 

Types of Ancestral Property?

Paternal Ancestor

In the concept of ancestral property, various types of property are inherited by Hindus from their ancestors. One of these is the property inherited from a paternal ancestor. This type of ancestral property is passed down from the father, father's father, or father's father's father, and must be at least four generations old to be considered ancestral.

It is important to note that the right to a share in this property accrues by birth itself, meaning that individuals have a legal right to this property from the moment they are born. Furthermore, the share of each generation is determined per stripe, not per capita, which means that each generation's share is first determined and then passed down to their respective successors.

Ancestral property can be classified into two categories: 

Joint family

Joint family property is the property that is owned by all members of a Hindu undivided family (HUF) and is passed down through the male lineage. It includes ancestral property, which is a property that has been inherited by a person's ancestors, and coparcenary property, which is a property that is jointly acquired by the members of the HUF. Joint family property can also include separate property that has been blended with the joint family property.

Separate property

Separate property, on the other hand, is a property that is acquired by an individual through their efforts and is not inherited. It includes property that is acquired through gifts, inheritance, or personal income. An individual's self-acquired property can be transformed into an ancestral property if it is contributed to and enjoyed jointly with other family members.

Accretions

According to the concept of ancestral property, any income or assets that are accumulated or added to the ancestral property also become ancestral property. This means that even if the property itself was inherited from a paternal ancestor, any income earned from it or any new property purchased with the income or assistance of the ancestral property will also be considered ancestral property.

This has been confirmed by various court rulings, such as Ramanna v. Venkata in 1888, where the court held that property purchased with the assistance of ancestral property is also ancestral property. Similarly, in Lal Bahadur v. Kanhia Lal in 1907, the court held that property purchased with the sale proceeds of ancestral property or obtained instead of such property is also ancestral property.

Rights of Legal Heirs

Below are a few rights of legal heirs have in an ancestral property:

  1. Right to claim ownership: All legal heirs of the ancestral property have an equal right to claim ownership of the property. They can also stake their claim in a court of law if their right is denied.
  2. Right to partition: Legal heirs have the right to demand partition of the ancestral property. They can ask for a physical division of the property or for a division of shares that would give them ownership of a specific portion of the property.
  3. Right to transfer ownership: Legal heirs have the right to transfer their share in the ancestral property to someone else. However, they cannot transfer more than their share, and the transfer must be done under the law.
  4. Right to sell their share: Legal heirs have the right to sell their share in the ancestral property to another co-owner or an outsider. However, they cannot sell the property as a whole without the consent of all the co-owners.
  5. Right to seek injunction: Legal heirs have the right to seek an injunction to prevent any co-owner from selling or transferring the property without their consent.
  6. Right to seek partition by metes and bounds: Legal heirs have the right to seek partition of the property by metes and bounds, which means that the property is physically divided into separate portions.

Who Can Claim An Ancestral Property?

Ancestral property can be claimed by any member of a HUF who is considered a coparcener. A coparcener is defined as a person who is descended from a common ancestor and has a legal right to a share in the joint family property. This includes male and female descendants of the common ancestor, including daughters, wives, and widows. The recent legal judgments have expanded the definition of coparceners to include daughters, who were previously excluded from inheriting ancestral property. In addition to daughters, other members of a HUF who can claim ancestral property include sons, grandsons, great-grandsons, and other male descendants of the common ancestor. However, the rules for claiming ancestral property can vary depending on the personal laws of the individual's religion and community.

Documents Required for Claiming Ancestral Property

  1. Proof of relationship with the ancestor;
  2. Proof of birth and age;
  3. Original Death certificate of the deceased owner
  4. Property documents such as the sale deed, title deed, and other property-related documents;
  5. Mutation entries;
  6. Property tax receipts;
  7. NOC from other legal heirs; and
  8. Power of Attorney. 

Legal Procedure for Claiming an Ancestral Property

It is important to note that if a coparcener is the sole surviving member of the family, he can claim the entire ancestral property. However, if there are multiple coparceners, each coparcener is entitled to only one share of the property. In such a case, a coparcener can initiate the process of partition to claim their rightful share of the ancestral property.

A partition suit is a legal process that involves dividing the ancestral property among the coparceners.  

Process of Filing a Partition Suit

1. Notice

The first step in filing a partition suit is to send a legal notice to all the other coparceners, informing them of the intention to claim a share in the property. The notice should provide details of the property, the share being claimed, and the demand for partition. If the other coparceners do not respond within 30 days, the coparcener can file a partition suit in court.

2. Plaint

The coparcener can file a partition suit expressing the plaintiff's claims and cause of action. It should contain information about the name of the court, name, and address of parties, facts related to the cause of action, description of the property, value of the subject matter, etc.

3. Hearing

On the first day of the hearing, the court examines the merits of the case. If the court admits the suit, a summon will be issued to the defendants to present their arguments, and another date for the hearing will be fixed.

4. Written Statement

The defendant files a written statement acknowledging the summon. This written statement is used to disprove the plaintiff's arguments in the plaint. The defendant has the opportunity to file a written statement within 30 days, which may be extended up to 90 days in specific situations.

5. Framing of Issues

Issues refer to the questions of law and the fact that the court needs to decide upon the resolution of the dispute. The court frames the issues based on the statements made in the plaint and written statement and the evidence presented by the parties. The issues are framed to determine the rights of the parties in the property and the extent of their respective shares. The court may also consider the nature and origin of the property, as well as any other relevant factors, in determining the issues. The court may also permit the parties to amend their pleadings or add new issues during the proceedings if it deems fit. Once the issues are framed, the parties will be required to produce evidence and make arguments in support of their respective positions.  

6. Decree

In a partition suit, the court will appoint a commissioner to divide the property among the coparceners. The commissioner will prepare a report after inspecting the property and determining the value of each share. The report will be submitted to the court, and the court will pass a decree based on the report. Once the decree is passed, the coparceners can take possession of their share of the property. If any coparcener is not satisfied with the division, he can file an appeal in a higher court.

Know More about Partition suit

Latest Supreme Court Judgements on Ancestral Property in India

The latest Supreme Court judgment on the ancestral property was delivered in the case of Prakash & Ors. v. Phulavati & Ors. in 2016. The case dealt with the issue of whether a daughter who was born before the Hindu Succession (Amendment) Act, 2005 was entitled to a share in ancestral property. The appellants argued that since the daughter was born before the amendment, she would not be entitled to a share in the ancestral property. However, the Supreme Court held that the daughter would be entitled to a share in the ancestral property, even if she was born before the amendment. The court stated that the amendment was made to remove discrimination against women and that it was a retrospective amendment. Therefore, daughters born before the amendment were also entitled to a share in ancestral property. The court also clarified that the amendment would not have a retrospective effect on partition suits that were already filed before December 20, 2004, the date on which the amendment was enacted.

In summary, the Supreme Court held that daughters, irrespective of whether they were born before or after the amendment, have an equal right to claim a share in ancestral property.

FAQs

1. Can an ancestral property be divided?

Yes, an ancestral property can be divided among the legal heirs or co-owners through mutual agreement or by filing a partition suit in court.

2. Can alternative dispute resolution methods be used to claim ancestral property?

Alternative dispute resolution (ADR) methods such as mediation and arbitration can be used to resolve disputes related to ancestral property. These methods can help avoid lengthy and costly court battles, and provide a faster and more flexible resolution process. However, it is important to note that ADR methods can only be used if all parties involved are willing to participate voluntarily. If one party is not willing to engage in ADR, then the dispute may have to be resolved through the court system.

3. Can a son claim ancestral property if his father has remarried?

A son has the right to claim his share of ancestral property regardless of whether his father has remarried or not. The son is considered a legal heir and co-owner of the ancestral property along with his siblings or other co-owners. However, the son's right to the property may be affected if the property was divided or sold by the father during his lifetime or if there are legal disputes or issues with the title of the property.

4. Do I need a lawyer to claim ancestral property?

While it is not mandatory to hire a lawyer to claim ancestral property, it is highly recommended to seek legal advice and representation, especially if there are disputes or legal complexities involved. A Property lawyer can help you understand your legal rights and options, and guide you through the process of claiming your share of ancestral property. Overall, having a lawyer can help ensure that your interests are protected and that the process of claiming ancestral property is carried out smoothly and effectively.

5. What if an `ancestral property has been sold by one legal heir without the consent of others?

If one legal heir has sold the ancestral property without the consent of other legal heirs, then the sale may be considered void or illegal. The other legal heirs may have the right to challenge the sale and claim their share of the property. However, the legal remedies available will depend on various factors such as the specific circumstances of the sale, the terms of the sale deed, and the applicable laws.

6. Can an ancestral property be claimed by a distant relative?

Generally, an ancestral property can only be claimed by legal heirs who are direct descendants of the original owner of the property. Distant relatives such as cousins, uncles, aunts, or more distant relations may not have a legal right to claim ancestral property unless they can prove their relationship to the original owner and demonstrate their legal entitlement to the property. However, the specific rules and regulations regarding inheritance and property ownership can vary depending on the jurisdiction and applicable laws.