Ancestral property refers to real estate or personal property handed down through generations within a family. These properties are cherished not only for their monetary value but also because of their great sentimental value. In large families, however, passing down ancestral property can be complicated, leading to misunderstandings, legal issues, and even disputes. This is often due to a lack of awareness and education on inheritance procedures.
1. Understanding the concept of ancestral property
What is ancestral property?
Ancestral property is a type of real estate or personal property that is passed down within a Hindu family from the male members by birth. These include the great-grandfather, grandfather or father. It is considered an undivided property that is inherited over a period of four generations. If the property is inherited from any other relative, it is not categorised as ancestral property. Additionally, property inherited from the mother's side does not fall under the ancestral property spectrum, as confirmed by two legal cases. The first precedence was set in 1937 in Md. Hussain v. Kisheva and the second one was Maktul v. Manbhari in 1958.
Critical features of the ancestral property:
- A Hindu joint family has owned the ancestral property for over four generations.
- The property is undivided, and in the event of partition, each person receives an equal share.
- If all four generations are still alive, they hold joint ownership and possession of the property.
- The right to ancestral property is acquired at birth and not dependent on the death of previous generation members.
Various Kinds of ancestral properties
- Inherited from a paternal ancestor
- Inherited from a maternal grandfather
- Allotted share during a partition
- Paternal ancestor’s inheritance or gift
- Accretions
2. Understanding the concept of divided, inherited and ancestral property
An undivided property, as the name suggests, refers to real estate or personal property that has not been split among multiple owners. For example, if a person has three sons - X, Y, and Z and he equally divides the property amongst them, then the property is classified as divided and no longer qualifies as ancestral property. As per a Supreme Court ruling in 2016, any property that has been previously distributed or partitioned is no longer family or ancestral property and is not subject to the rules and regulations surrounding ancestral properties.
One often tends to get confused between inherited property and ancestral property, and these are two very distinct concepts. Ancestral property refers to property that is passed down through generations by virtue of birth. This type of property is usually received from the direct paternal ancestors, like from the father, grandfather, great-grandfather, and great-great-grandfather. Property received as a gift from a father or grandfather is not categorised as ancestral property.
In contrast, an inherited property is a property that is obtained through a will after the owner has passed away or in the form of a gift from the owner's death. Inherited property can come from any family member and may not necessarily be considered ancestral property.
3. Women's rights
Ancestral property rights
Prior to the 2005 modification to the Hindu Succession Act, 1956, women were not considered coparceners and thus did not have a claim to their ancestral property post-marriage. This meant the old status explicitly excluded women from ancestral property inheritance.
With the 2005 amendment to the Hindu Succession Act, women were granted coparcenary status and were considered equal partners along with their male siblings. This now meant daughters, like sons, held equal rights and responsibilities on the property and, post-marriage carried on to be coparceners. Though, initially the Supreme Court, on September 9, 2005, stipulated that a daughter could inherit her father's ancestral property only if both the father and daughter were alive.
But, in 2018, the Supreme Court ruled that out, and a daughter could inherit her father's property regardless of whether the father was alive on that date or not. It is important to note that property acquired from the mother's side is not eligible as ancestral property.
Women's Right to Agricultural Land
Despite the 2005 amendment granting daughters equal rights to ancestral property, this rule is frequently disregarded during the division of agricultural land in India. This is because land comes under the periphery of state regulations, whereas the Hindu Succession Act is a federal law. In some Indian states, the division of agricultural land is determined by laws specific to the state, and these laws do not recognise daughters as equal inheritors of ancestral property.
4. Generational Ownership
How many generations get rights over ancestral property?
For ancestral property that has not been divided, inheritance rights belong to four generations of the male lineage. These include the father, his father, his father’s father, and his great-great-grandfather. If X inherits a property from any paternal ancestor up to three generations above him, his three generations of descendants (X’s son, X’s grandson and X’s great-grandson) can claim inheritance on it.
Commencement of Ownership in Ancestral Property
An individual's right to an ancestral property begins at the time of their birth, unlike other forms of inheritance, such as through a will, where the right only arises after the owner's death. So, in the example mentioned, X’s ownership rights to ancestral property will arise when X is born and not at the time of his father’s demise.
Dividing ancestral property among generations
Each generation’s share is first established, and the share of subsequent generations is further divided from the original share. It is important to note that each member’s share in the ancestral property is constantly declining as new members get added to the family. This implies that at some stage in the future, one's share in the ancestral property may be so insignificant that it may not be worth pursuing.
Limits of claim over ancestral property
Prior generations have a stronger claim on ancestral property. This essentially means that the claim of future generations is going to be a subdivision of what is left after dividing the property among the previous generation’s stakeholders. Simply put, the stakeholder’s rights in an ancestral property are not decided on a per-capita basis and instead on a per-stripe basis. If X has two male siblings, Y and Z, their family property will be divided amongst X, Y and Z, and then the share of each sibling can be distributed among their descendants.
To conclude, inheriting ancestral property can be a complex matter, which is why it is important to understand the basic concepts and legal rights. With Blox by your side, you can have all your real-estate queries addressed, so you are informed at all times to take the right decision.
