India: Mysteries Of Ancestral Property

Last Updated: 3 September 2019
Article by Hardeep Sachdeva and Nitin Saluja
Most Read Contributor in India, October 2019

Though the concept of ancestral property has been in existence since time immemorial, the term has not been defined in any of the legislations governing the inheritance and succession of property amongst the members of a family. The Courts in India, however, every now and then, have come to rescue, at-least to clarify the position of law with respect to ancestral property in India.

While the Hindu Succession Act, 1956 (“HSA”) and other legislations are silent on the aspect of the definition of “ancestral property”, the Hon’ble Supreme Court of India (“SC”) has placed its reliance on the Mitakashara school of Hindu law. The SC has held that the essence of an ancestral property is that, the sons, grandsons and the great grandsons of a person who inherit it acquire an interest and the rights attached to it at the time of their birth. The position of ancestral property has further been clarified by the SC in some other matters, wherein it was held that any property inherited up to four generations of a male lineage from the father, father’s father or father’s father’s father is termed as ancestral property and any property inherited from mother, grandmother, uncle and even brother is not an ancestral property. In ancestral property, the right of a property accrues on the male on birth, who is also the coparcener of such property.

The inheritance of such ancestral property is different from inheritance under section 8 of the HSA, where any inherited property becomes separate and self acquired property of the successors/ legal heirs who inherit the same. However, there may be exceptions to such rule as well. In series of judgements, wherein in summary, it was held that if a Hindu Undivided Family (“HUF”) and its properties were existing prior to the passing of HSA in 1956 and which HUF continued even after passing of HSA, in which case a property inherited by a member of HUF even after 1956 would be HUF property in his hands – to which his paternal successors in title up-to three degrees would have a right. The second exception was when the person who acquires a self-acquired property throws the same into a common hotchpotch of HUF.

Now, some of the key aspects of ancestral property under Hindu personal laws and the regulatory framework pertaining to the functioning and devolution of ancestral property in India can be summarized as under:

1. As previously stated, there is no definition of ancestral property, however, the HSA is the primary statute which governs the manner in which the property will be devolved and disposed off by the legal heirs to any such property. The HSA was amended by the Hindu Succession (Amendment) Act, 2005 (“2005 Amendment”), which introduced certain fundamental changes to HSA. While the 2005 Amendment was repealed by the Repealing and Amending Act, 2015, the Courts in India have held that the fundamental changes brought through the 2005 Amendment still hold applicable.

In addition to the HSA, the other laws which are applicable to ancestral property include inter alia the Transfer of Property Act, 1882 (“TPA”) and Hindu Minority and Guardianship Act, 1956 (“HMGA”).

2. Ancestral property has traditionally been held by a joint Hindu family consisting of male coparceners and was traditionally governed by the Mitakshara school, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property.

This has also been elucidated by the SC in Rohit Chauhan v. Surinder Singh and Ors.1, wherein the SC has held that “Coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the Joint Hindu family and before commencement of Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family.”

3. An ancestral property divided/ partitioned through a partition deed, family arrangement, etc. loses its ancestral character. The prerequisite of an ancestral property is that an ancestral property should not have been divided or partitioned by the family members, as once a division of the ancestral property takes place, the share or portion which each coparcener gets after division becomes his or her self acquired property. After partition, the share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issues.

Here too, SC held that “so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.”

4. Prior to the 2005 Amendment, daughters were not entitled to inherit ancestral property as sons. The 2005 Amendment had brought about a significant change by entitling the daughters a share in the ancestral property along with their male siblings. At present, the daughters are entitled to same rights in the property of her father as that of the father’s son. However, daughters cannot inherit ancestral property if father has died before 2005.

The Supreme Court in Prakash v. Phulavati2 has held that the rights under the 2005 Amendment are applicable to living daughters of living coparceners as on September 9, 2005, i.e. the date of commencement of the 2005 Amendment, irrespective of when such daughters are born. The Court further held that the 2005 Amendment stipulates that a daughter would be a coparcener from her birth and would have the same rights and liabilities as that of a son.

The 2005 Amendment was repealed by way of Repealing and Amending Act, 2015. However, the Karnataka High Court has said that the Repealing and Amending Act, 2015, does not wipe out the amendment to Section 6 of the HSA, as per which the daughters were treated as coparceners on par with sons vis-à-vis the coparcenary property and accordingly does not take away the status of a coparcener conferred on a daughter giving equal rights with the sons in the coparcenary property.

5. The position with respect to management of minor’s share in any immovable property has been examined under Section 8 of the HMGA, which states that the natural guardian of a minor, in order to deal in any manner or dispose off the immovable property of the minor has to seek permission from the Courts in India. However, this rule does not apply when the minor has an undivided interest share in the HUF property and the property is under the management of an adult member or Karta of the family.

6. Further, as regards the rights of the coparcener, it is to be noted that a single coparcener who is not the managing member of the joint family property cannot be sued on behalf of the family or sue to recover a particular portion of the joint family property for himself. The only remedy by one member against his co-sharers for possession is by a suit for partition, and until then he has no right to the exclusive possession of any part of the said property3. The underlying principle is that there is community of interest and unity of possession between all the members of a coparcenary and each coparcener is entitled to joint possession and enjoyment of the joint family property. A coparcener who is excluded from his right in respect of joint possession and enjoyment is entitled to an account of the income derived from the joint family property and to have his share of the income ascertained and paid to him, i.e. mesne profits4, as well as enforce his right to joint possession of any property from which he is excluded5.

There is no end to how much one can write on this very interesting and mysterious subject, therefore we say that you watch this space for more to come.

Footnotes

1 (2013)9SC C 419

2 (2016)2SC C 36

3 Phoolbas Koonwur v. Lalla Jogeshur (1876) 3 IA 7: 1 Cal 226

4 Hira Lal v. Pearey Lal ILR (1939) All 897

5 Ramachandra v. Damodhar (1896) 20 Bom 467

Published In:Lex Witness

Date: August 28, 2019

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