In India, Ancestral Property refers to a property which is undivided and is inherited by an Individual by birth from his ancestors. According to the provisions of the Hindu Succession Act, the Act defines Ancestral Property as a property which is undivided and has been held by four generations of the Joint Hindu Family in India. Pertinently, the concept of Ancestral Property does not fall under the purview of either in Muslim Personal laws or Christian laws in India.
Essentials Of Ancestral Property as Per Hindu Succession Act
- The property must be owned and held by four generations of male lineage of the Hindu Joint Family
- The property inherited must be undivided in nature. However, in cases where the property is partitioned, then each member shall have equal rights in the property but will cease to fall under the purview of Ancestral Property.
Persons / Members Entitled to Claim Share in Ancestral Property
In accordance with the laws and recent judgements of the Hon’ble Courts, following individuals are entitled to have a right in their Ancestral property:
1. Four Generations of the male lineage in Hindu Undivided Family
The male members belonging to the four generations in the Hindu Joint Family shall have the right over the Ancestral Property. For instance, persons who shall be entitled to have a share in the Property owned by their Great Grandfather will be:
- Son of the great grandfather,
- Grandson of the great grandfather,
- Great grandson of the great grandfather.
However, in relation to the above, the successive generations will also have a right to the Ancestral property only in case where the property remains undivided.
2. Daughters present in the Hindu Joint Family
The Hon’ble Apex Court in its recent judgement has made it clear that all the daughters belonging to the Hindu Undivided Family shall be entitled to obtain their respective shares in the Ancestral Property in India. No daughter shall be deprived of her right per se in the Ancestral Property.
3. Mother’s Right in Deceased Son’s share in Ancestral Property
The Hon’ble Court of Karnataka in its recent judgement has held that the mother of a deceased son shall have the right over her deceased son’s share in the Ancestral Property. The Court further observed that as deceased son’s mother falls under the category of Class-1 legal heirs, so therefore, she will be entitled to obtain the share in the Ancestral Property. However, in case, if the deceased son was married then first preference shall be given to the wife and children of the deceased son.
4. Wife’s share in deceased Husband’s Ancestral Property
According to the Hindu laws, if a husband dies intestate, his wife being a Class 1 legal heir shall be lawfully entitled to obtain a share in her husband’s ancestral property. However, if there is a Will in place and the property is self-acquired then in such a case, the rights in the property shall be delved according to the WILL executed by the Husband.
5. Minor children’s share in the Ancestral Property
A minor child/children shall be entitled to have a right to the property if the said property is undivided. Further, a minor child cannot be deprived of his/her right in the ancestral property by any of the family members belonging to the Hindu joint family.
6. Children Born out of a void/ voidable Marriage
Recently, the Hon’ble Supreme Court in its recent judgement “Raja Gounder and ors vs M. Sengodan and ors” has held that the children born out of a void/ voidable marriage shall be considered as Legitimate children and further will be treated as a part of the family. Therefore, they will be entitled to obtain a share in the Ancestral Property of the common ancestor.
7. Children born out of live- in relationship
The Hon’ble Supreme Court in its recent judgement “Kattukandi Edathil Krishnan vs Kattukandi Edathil Valsan” has held that a child born out of live in relationship shall have a right in his/her father’s Ancestral Property.
How Can Individuals / Members Who Are Entitled Can Claim Their Share in The Ancestral Property
Persons who are entitled to claim their share in the Ancestral Property as a matter of right can procure their said share through the following modes:
- By filing a civil suit for Partition of the Ancestral Property
- By executing a family settlement agreement
- By executing a Partition Deed
Process of filing a Suit for Partition
- The first and foremost step in the case of a dispute between the family members is to file a complaint in the appropriate court. The aggrieved is required to file a complaint by way of an application against the members belonging to the Hindu Joint family.
- Once the complaint is admitted, the Hon’ble Court will issue notice to the other party (family members)
- Upon competition of the notice stage, the other party/ defendant will be required to file their response in relation to the complaint within a 30-day period. The said time allocated by the court can be extended further to 90 days.
- The Plaintiff/Aggrieved will be required to file a response to the statement filed by the other party/ defendant by way of replication.
- After this, both the parties to the suit shall be required to file the documents they are relying upon in Court.
- Once the pleadings are completed, the Hon’ble Court will frame issues pertaining to the suit, wherein both the parties will be required to prove their claims in relation to the issues.
- Once the above process is completed, the witnesses of both the parties are examined before the Court to check whether they are genuine or have been implanted by the parties.
- Finally, the Hon’ble Court, after hearing both the parties, passes a judgment accordingly.
Process of executing a Partition Deed
Members who are entitled to have a right in the Ancestral Property can claim their shares by executing and registering a Partition Deed. A Partition Deed is a document formed by the members of the Hindu Joint Family to distribute the property so that they claim their share. A Partition Deed covers all the information pertaining to the Property, the way in which the property will be distributed among the members who are entitled to inherit the property.
- First Step: The Parties are required to prepare a ‘Deed’ by providing all the information pertaining to the property.
- Second Step: After formation of the Partition Deed, the parties are required to make the payment of stamp duty.
- Third Step: Once due compliances are met, the parties are required to file the Partition deed in the Sub- District Registrar office of their respective states. Some states offer facilities for filing the Deed online.
- Fourth Step: After filing of the Partition Deed, the concerned authority/ Registrar then verifies and ensures that the parties fulfill all the requirements.
- Final Step: The applicants/ members are then required to deposit the required registration fees. Once paid, the Deed is registered, and a receipt of the fee paid is provided to the members/ applicant.
Process of executing a Family Settlement Agreement
A Settlement Agreement can be formed between the family members who are entitled to a share in the Ancestral Property. The said individuals can enter into an arrangement by providing / distributing property rights to each other in accordance with the conditions laid in the Settlement Agreement. No registration and stamping are required in the case of executing a Family Settlement Agreement.
Time limit to claim share in Ancestral Property
Any individual who has a right to the Ancestral Property has been provided a 12-year period by law. The person can claim his/her share in the property by filing a suit for recovery of possession in the appropriate court within the prescribed period. According to the law, the 12-year period begins when a member becomes aware of their exclusion from the Ancestral Property,
Difference Between Inherited Property and Ancestral Property
The key difference between an Inherited Property and Ancestral Property is that when an individual inherits a property through a will or by gift, it is known as Inherited Property whereas Ancestral Property is an undivided property which has been held by the four generations of the male lineage of Joint Hindu Family.
Conclusion
In conclusion, the concept of ancestral property in India is only defined under the Hindu Succession Act. Pertinently, only Hindus present in the Hindu undivided family are entitled a right to claim their share in the ancestral property, whereas persons belonging to other religions acquire property either through a Will or through their personal laws.
The concept of ancestral property is not present in other religions except Hindus. Therefore, to claim a share in the ancestral property, Hindus who possess a right in the ancestral property can either file a civil suit for partition in case of a dispute between the family members or if there is no dispute then, a partition deed/ family settlement agreement can be executed by the members. It is crucial to emphasize that the property of the maternal side cannot be termed as ancestral property. Only the undivided property of the paternal side will be referred to as ancestral property.
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