Ancestral property is quite an important term in the real estate business. Such assets are mistaken as any inherited property. Before we call any land an Ancestral Property, it needs to meet certain criteria to pass the test. One must be aware of the Ancestral property partition’s government rules and logic to get the best value. Now, let’s take a fair look at everything that you must know about an Ancestral property.
What Do You Understand By Ancestral Property?
Ancestral property means any undivided property which has been present through four generations. Such property should belong to the great grandfather and pass on to your grandfather. Maintaining the hierarchy, it will pass to your father, then to you in an undivided form.
Non-Divisibility Of An Ancestral Property
1. If your great grandfather owned an ancestral property, it would pass on to your grandfather after his death. After your grandfather dies, it will pass on to your father and his siblings.
2. If your grandfather divides the property among your father and siblings before his death, the property is no longer ancestral.
After an ancestral property is getting legally divided, it will be a self-acquired property with the property holder’s legal name. If you are sharing it with your father, your father is the owner of that property. The ancestral property will no longer be an ancestral property when divided among the four-generation legacy’s daughters/sons.
3. Ancestral property is the birthright. Any other asset/self-acquired property claims legal measures in passing on the death of the property holder. But for an ancestral property, your birth makes you eligible to claim for your rights.
4. Property that you are gifting to someone is not ancestral.
5. It would help if you determined the property share of each generation. The share of successive generation is gradually sub-divided from the prior share.
6. When more than one person enjoys self-acquired property, then it becomes an ancestral property.
7. You cannot sell an ancestral property without the consent of other property members.
8. A property is not an ancestral property if it comes from your maternal side. In 2005, the Supreme Court mentioned that a daughter could claim/inherit their right to ancestral property if only the father is alive after 2005. So, in the future, the maternal property will hold equal significance as ancestral property.
The Variance Between Lineal And Inherited Property
It is very critical to determine the type of land you are residing in. Whether the property is ancestral or inherited? Let’s make it clear.
On 2 March 2016, the Supreme Court of India pronounced a Landmark Judgement that relied on the pre-existing Law on the Concept of Ancestral Property.
The Judicial Court ruled on the conjoint reading of sections 4, 8, and 19 of the Hindu Succession Act of 1956.
When a joint family property is distributed based on section 8 on intestacy principles, it will no longer be so when a various person uses it. The property rights holders are now common tenants and not joint tenants.
Concept Of Ancestral Property
Below are four points which can prove to you the concepts of an ancestral property:
i. The property must be four-generation old of the male lineage.
ii. The users of the joint family must not divide the property legally among themselves. Once each Coparcener gets its share, it becomes his/her self-acquired property.
iii. Ancestral property rights are set on not per capita but stripes. Firstly the share of each generation has its count. Later, the share owned by their predecessor is sub-divided.
iv. When someone enjoys a self-acquired property in common, then it becomes ancestral property.
Classification Of Property Under Hindu Law
Under the Hindu Law, any property divides into two heads –
- Separate Property
- Coparcenary property
The Coparcenary property is further divided into the following –
- Ancestral Property
- Non-lineal property of the joint family.
Rights To Ancestral Property
By now, you must have known what an ancestral property means and who can be a part of the ancestral property. In this particular section of our article, we will be a little more specific on ancestral property rights-holders.
Here are a few queries that deal with inheritance and property disputes:
1. Ancestral Property Daughter Rights
In 2005, the Hindu Succession Act of 1956 stated that daughters would have equal rights from the parental property. Claiming her right on her father’s property is the daughter’s birthright, just like a son. In case the father passes away without partitioning his self-acquired or ancestral property, the daughter can claim for her rights exactly as the son. The father’s ancestral property is a daughter’s right if the father passes away after 2005.
The marital status of the daughter is unimportant in this case. If you are married or single, it will not decide your rights based on your relationship status.
But unfortunately, if the father passes away before 2005, the daughter will not be able to stake any claim over the ancestral property. If the father died after 2005, you could legally claim your right to the ancestral property. Meanwhile, the owner can distribute a self-acquired property as per his decision.
Moreover, if you are a legal heir of the lineal property, you can file a legal suit. The elapsed time imposing your right to the property will not be important in that case. Which means, before or after your parent’s death, you can claim for your right if you are a legal heir of the property.
i. Inheritance Rights Of The Daughter In Case Of Non-Ancestral Property
If the property is self-acquired, the father has all his right to divide the property as he wishes.
If the father decides not to give his property to his children, he can gift or will it to anyone of his preference.
ii. Inheritance Rights Of daughters when the father dies without a will.
When the father dies without making a will, the property passes on equally to the legal heirs. This is valid for both the ancestral and self-acquired property of the father. The children and the mother will get equal property shares.
2. Ancestral Property Son’s Right
As per the Hindu Succession Act of 1956, the Class I heirs of an ancestral property (i.e., son/daughter) has the first right if the father dies intestate (without making a will).
Since the child is a coparcener, he/she can claim a legal right to the ancestral property. But in some cases, a son might not receive a share in father’s property.
If the ancestral property is a gift from your grandfather, it is no longer an ancestral property.
NOTE: None of the above is valid for a stepson as he does not belong to the Class I heir.
i. Inheritance Right For Stepson In Ancestral Property
A stepson can claim his right to his stepfather’s ancestral property if there is no Class I the father’s heir. For example, say the father dies without any children. The property, in that case, legally passes to the wife as the legal heir. Now, the wife is the owner of the property. If she gets further married and has a son from her second husband, that child is not a legal heir of the wife’s property.
ii. Can a son claim a mother’s Ancestral property? Ancestral property rights for Grandchildren
If you have two grandchildren (sons of the daughter), then according to the Hindu Succession Act of 1956, they will have their rights to the ancestral property.
If the daughter owns a portion of the lineal property, it will pass on to her sons. The sons are now the legal heir of that property.
Grandchildren do not have a right to the lineal property. In cases where the grandfather dies without making a will, his direct heirs – his wife, daughter(s), and son(s)- will inherit the land left by him.
Partitioning Ancestral Property Legal Rules For Partition
- On the death of their grandfather, the property will devolve equally to his sons and daughters.
- Once you divide the property, it is no longer an ancestral property.
- If it is your grandfather’s property, your aunt will have an equal share in the property.
- If your father died before 2005, the daughter would have no licit share from the property.
- The Court will partition the property among four biologically legal heirs equally.
The Ancestral Property Will
A Will is a legal document with records of the wish of the testator on distributing his assets. Hence, the owner can distribute his property in any manner he desires.
- More than two spectators must attest to a Will. Each of these witnesses must see you signing or attaching your mark on that Will.
- Each spectator must sign the Will in front of the testator.
Note: There must be no adoption cases. Ancestral Property has the legal rights to the direct biological son or daughters.
Division Of The Property Self-Obtained By The Father
a. If the father dies without a will of the self-acquired property, the son will be the property’s direct heir. No grandchild can claim it as an ancestral as it falls under the Hindu Succession Act.
b. The fresh possessors of the property are kept in records under the Partition Deeds.
c. The sub-registrar must register for a lawful and binding effect.
d. The deed must have the date mentioned to make the partition more effective.
e. The names of the alliances must be present on the Will specifically.
f. After fair division, the property gains a new title.
g. Once partitioned, the owner can sell, share, gift, or exchange the property at his choice.
h. For co-owners, the shares are common. Without each party’s assurance, the property is undividable.
The Legal System of India shares a fair eye for every citizen. Whether it includes rights for property or themselves, the wide sequence of law will stand unbiased for all.
Facts About Ancestral Properties
Property related disputes are quite common in the present scenario. Be it between siblings or families; ancestral properties are the cause of woo for many. So, you must know several facts about your lineal property. Mentioned below are some. Go through them-
1. For a property to get inherited, make sure it remains unbroken for at least four age groups. That is your father, your grandpa, great-grandpa, and great-great-grandpa. However, if it breaks between its family, it’s no more called a lineal property. If the property breaks or gets shared between its coparceners, it becomes a self gained property.
2. For your lineal property, you’re entitled to your birth itself. From the above, you must have known by now that either you’re eligible for the property by blood or not.
3. The property that your ancestors have acquired by themselves also comes under the linear property. However, it may vary according to the situation. That is, in self-acquired properties, the will of your father depends. If he has made any wills, the consignment of property takes as per his wish. Unfortunately, he passes away without any testament; it’s entitled to all his legal heirs.
4. The property that you inherit from your maternal side is not considered as lineal or ancestral property.
5. If you attain a property as a wish or a present or gift, it’s not considered lineal property.
6. As I said, a property that you’ve acquired on your own is not considered to come under linear properties. However, if you merge them with your ancestral property, it can be called a part of the lineal property.
7. There are situations when after the father’s demise if he hasn’t made any testament of his wishes, his property gets shifted to his legal heir’s name. In such cases, it is not regarded as lineal property.
8. Added to everything, the supreme court allocated the daughter’s right in the lineal property in its 2005 improvisation in the Hindu Succession Act, 1956.
9. According to the HUF scheme, even if a son gets debarred from any property rights, he’s still entitled to receive a share in the lineal property.
Frequently Asked Questions
1. Can I, as a daughter, have a claim on my father’s property?
Earlier, under the legal heir, only the son stamped their claim on their father’s ancestral property. However, when the Hindu Succession Act, 1956, was improvised in 2005, a new strategy was imposed. As per the supreme court orders, daughters even have equal rights as the son on their lineal property. The fact doesn’t change if she’s married or not.
2. Is it possible for me to will my lineal property?
Wills or testaments are made for the property you’ve acquired on your own and didn’t get it as an order of patriarchy. Thus, lineal properties, if made as testaments, are not considered ancestral anymore.
3. As a father, can I need to take the permission of my heirs to give away the lineal property?
Since lineal properties are transmitted from our upper peerage to us, it’s not obtained independently. Since our ancestors are also a part of this property transferring process, you can’t give away the property like that. Even if you sell, your heirs can still ask for their part in the future property.
Ancestral properties have a different fascination. Be it a situation where you’re living in India or an NRI; everyone wants a claim regarding property share. By now, you must have known various facts about the ancestral property. I hope I could enlighten your views on this topic. Peace!