Ancestral Property: Definition
Ancestral property is the property that has been handed down over generations in a family. This is any property that was inherited by a son’s father from his father and his father inherited the same property from his father’s father and so on. Coparceners have a right by birth on the ancestral property, that is, the moment a coparcener is born, they are entitled to the ancestral property. Coparceners are sons and daughters up to three generations from the person whose property is being divested i.e. the ancestor’s son, the son’s son and the son’s son’s son. Therefore, the grandson is entitled to a share in the grandfather’s property. After the 2005 Amendments to the Hindu Succession Act, 1956, daughters too are coparceners and can claim a share in the ancestral property.
Distribution of ancestral property is done per stripes as opposed to per capita distribution. Under per stripes distribution of property, each branch or stripe of the family of the ancestor gets to divide the share passed down to it. This means that every generation of coparcenary in a particular branch or stripe of that family will get a share based upon the subdivision of the share that the previous generation receives from their predecessor.
The grandson has equal rights as any other coparcenary in an ancestral property. This means that the grandson has the right to ask for the partitioning of the property at any time and a sit for the same, and also an interim relief.
Types of Ancestral Properties
There are six types of ancestral properties over which the grandson has inherent rights over.
• Property inherited from paternal ancestors
Paternal ancestors are ancestors from the father’s side of the family. Any property that is inherited from the father of a person, or father’s father, or father’s father’s father is ancestral property. It should be noted that the usage is limited to the descent of property only from the male ancestors of a family. This means that any property inherited from any relative is cannot be considered as ancestral property.
If a person inherits property from his father’s father (grandfather), such a property is ancestral property.
• Property inherited from the maternal grandfather
The earlier position of property inherited from the maternal grandfather was that it was indeed a joint family/ ancestral property and thereby would devolve by succession. However, this view was later revised as it was established by the court that property held by the maternal grandfather is not ancestral property but a separate property altogether. This means that if a grandson inherits property from his mother’s father would be considered a property separate from the joint family property.
• Property inherited from females or collaterals
No property inherited by a person from a female, like his mother, or collaterals, like his brother or his mother’s brother can be classified as ancestral property. Only property inherited from a person’s father, paternal grandfather and paternal great-grandfather is called ancestral property.
• Allotted shares upon a partition
When a coparcener acquires a share during the partition of the joint family property, the so acquired property is also considered as ancestral property to his descendants. The sons and daughters (after the 2005 Amendments) gain an interest by birth or subsequent births after the partition. However, if such a coparcener dies and does not have any children, then the property will be devolved by succession.
• If the father or paternal grandfather or great-grandfather wills or gifts the property
We already know that any property passed down by a paternal ancestor is an ancestral property. However, the question about the nature of a self-acquired property that a paternal ancestor like the father, father’s father or father’s father’s father gifts or wills to his son has been a point of contention in the past and was settled by the Supreme Court in later decisions.
The point of contention is whether such a willed/ gifted self-acquired property should be considered as a self-acquired property of the son or should be treated as ancestral property with respect to the descendants of the son.
The Supreme Court held that such an ancestral property that has been gifted or willed by a father to his son cannot always be considered as ancestral property. What determines the nature of the property is the intention of the donor whether the gifted/ willed property should be kept with the son as a separate or exclusive possession or whether the property is meant for the whole family branch of the son. Therefore, the question of the nature of a gifted or willed self-acquired property is a questing of fact and should be decided after taking into consideration all the factual circumstances of the case.
Accretion means that gradual increase or expansion of income from the property over time. Accretion of income from ancestral property is also considered as ancestral property. Moreover, any property that is bought using the income from an ancestral property is also considered an ancestral property. Children, grandchildren, and great-grandchildren have a vested interest in the accretions and income from the ancestral property. This includes income accrued after the birth of such coparceners as well as the income accrued before birth.
Rights of the grandchild over self-acquired property
Where a legal partition takes place and the self-acquired property of a father is allot to his son by way of being a legal heir and not as a result of the son being a coparcener, then the son’s son (i.e. the grandson) does not have any vested birthright over such property. Moreover, the grandfather has the right to transfer property to whichever person that he wishes to.
To explain this further, a succession of the property of a Hindu takes place as per the Hindu Succession Act, 1956. When a grandfather dies intestate i.e. without a will, then his self-acquired property will devolve as per the section 8 of the Act. As per this section, such self-acquired property will first be distributed among the Class I heirs of the person who has died. Class I heirs are listed in the Schedule of the Hindu Succession Act, 1956. These are:
• Widow of a predeceased son
• Son of a predeceased son
• Daughter of a predeceased son
• Widow of a predeceased son of a predeceased son
• Daughter of a predeceased son of a predeceased son
• Son of a predeceased son of a predeceased son
• Daughter of a predeceased daughter
• Son of a predeceased daughter
After the Amendments to the Hindu Succession Act in the year 2005, the following relations were added to the list of class I heirs as well:
• Son of a predeceased daughter of a predeceased daughter,
• Daughter of a predeceased daughter of a predeceased daughter,
• Daughter of a predeceased son of a predeceased daughter, and
• Daughter of a predeceased daughter of a predeceased son.
If the person who has died intestate does not have class I heirs, then his property will be distributed to his class II heirs. If there are no class II heirs as well, then the property will devolve upon the agnates and if there are no agnates then the property will go to the cognates.
From the list of class I heirs, it can be seen that a grandson can only be considered a class I legal heir to his grandfather’s property if his father has died before the demise of the grandfather. If the grandchild’s father is still alive at the time of death of his grandfather, then the grandfather’s property will be taken up by his sons, daughters, and wife and they will inherit this property in the capacity of self-acquired property to which no other person (including the grandchild) would have any rights to.
In the case of Uttam v. Saubhag Singh (Civil Appeal NO. 2360 of 2016, arising out of SLP (CIVIL) NO.6036 OF 2014), the appellant filed a partition suit against his uncles and father on the contention that the son was entitled to 1/8th share in the suit property, which he considered to an ancestral property, in the capacity of a coparcener. The other side contended that the property was not an ancestral property because the appellant’s father had separated from the joint family because of an earlier family.
The First Appellate Court had clarified that when the Appellant’s grandfather passed away, he left behind a wife and his property was devolved as per section 8 of the Hindu Succession Act, 1956 since he died intestate. Once a property is devolved under section 8, it ceases to be a joint family property and is devolved by way of intestacy, not survivorship. This means that when the appellant, in this case, filed a suit for partition, there was no joint property in existence at all. Moreover, the appellant did not have any right to sue for partition at all because he was not a legal heir to the property. His father was the legal, Class I heir to the property since he was alive at the time the appellant’s grandfather died.
The court noted that upon the Appellant’s grandfather’s demise, the proviso to section 6 of the Hindu Succession Act, 1956 would be applicable to the extent the grandfather had left behind a Class I heir, his widow.
Moreover, Explanation I to section 6 of the Hindu Succession Act says that when a portion is to happen upon the death of a person, the law shall assume that the partition took place right before his death. Accordingly, as per the facts of this case, if the Appellant would have been born at the time the partition took place in 1973, he would have been entitled to share to his grandfather’s property since he would have been a coparcenary. However, the Appellant was born in 1977 and was therefore not a coparcenary anymore.
Lastly, the court clarified that the devolution of the Appellant’s grandfather’s joint family property was done by succession as per section 8 of the Hindu Succession Act. Once the property was devolved in such manner, the ancestral property stopped assuming the nature of a joint family property when the Appellant’s grandfather died and his Class I heirs held on to his property as tenants in common and not as joint tenants. Therefore, the time when the Appellant was born, the said property was no longer a joint family property and his suit for partition would not be maintainable at all.
In this case, the Supreme Court also gave clarifications on the devolution of the Hindu Joint Family property as per the Hindu Succession Act, 1956.
• If a Hindu male dies with an interest in the Mitakshara coparcenary property i.e. joint family property, then his interest will devolve by survivorship to the coparceners under section 6 of the Act.
• Such a male Hindu can always dispose of his interest in the joint family property by way of a will or any other testament as per section 30.
• As per the second exception to section 6, when a Hindu male dies and leaves behind a Class I female relative, or a Class I relative who claims through such a female relative, then the property shall devolve by succession and not survivorship.
• To determine the shares of coparceners in a joint family property, a partition is initiated immediately upon a coparcener’s death. All coparceners and the deceased’s widow are entitled to a share in the property.
• Section 8 of the Hindu Succession Act is applicable when a male Hindu with self-acquired property dies intestate, or when the proviso to section 6 applied. In such cases, the property will devolve by intestacy and not survivorship.
• After property has been devolved under section 8 of the Hindu Succession Act, sections 4, 8 and 19 can be read together to mean that the joint family property is no longer of the nature of a joint family property and that the person now holding the property after succession hold it not as joint tenants but as tenants in common.