In our nation, the concept of ancestral property has existed since time immemorial. We can say that this law has been used by us from the time when we find our sources of Hindu law. The term ancestral property is truly not defined under any legislation governing the succession and inheritance of property among the legal heirs. The Supreme Court of India always tries to clarify the position of law for ancestral property in India. The amendment of 2005 in the Hindu succession act has given the property rights of women in ancestral property.
Types of property for succession
There are mainly two types of property for succession:
- Self-acquired property
- Ancestral property
What is self-acquired property?
Any movable or immovable property which you purchase or acquire by sale deed, gift deed or will of property. None of your legal here can claim their right over your self-acquired property. Even when your ancestor makes the will of ancestral property or divides the ancestral property during the lifetime, that ancestral property loss is its title and becomes self-acquired property.
A father with his free consent can transfer his self-acquired property to any person.
What ancestral property?
Any undivided property that has been present through four generations continuously is known as ancestral property. Ancestral property should belong to your great grandfather and passed to your grandfather after that your father and lastly to you. To make a property ancestral, the property must follow this hierarchy. Also during this process, this property should not be divided even into your grandfather’s or father’s brothers.
According to the ancestral property laws, it seems based on the Mitakshara schools of Hindu law because it talks about the property of the great grandfather which is undivided and now becomes ancestral property. The property inherited from mother, grandmother, great grandmother, uncle and brother is not considered ancestral property.
What is an undivided property?
A property that is not divided into new family members during the lifetime of the property owner is known as undivided property. When property a person divides his ancestral property between his two sons and one daughter, it will break the chain of ancestral property.
Let’s make it simple with an example, a person is Shyam who divided his property into his two sons by making a will of property. After the death of Shyam, now his property will be divided between his two sons according to the will. This property cannot be considered as undivided property because he has made the will of the property when he was alive.
Can a father sell his ancestral property?
The general concept of ancestral property is that a person cannot sell the insider property more than his share in that property. If any of the family members want to sell the ancestral property for more than his share, the other family members can stop him from doing so.
In India, we use Hindu undivided family custom in which one member who is older than everybody in the family is known as Karta of the family. As a given title of Karta, he has the right to manage the expenses and income of the family. Also if the family was to buy or sell the property that decision is also taken by the Karta of the family. The Karta of the family also manages the Hindu undivided family business. So the question arises that what if the Karta of the family sells the property for the needs of the family?
Kehar Singh Vs Nachitter Kaur and others (2018)
The Supreme Court of India gave its judgment in this case by stating the facts that if the Karta of the family sells the ancestral property for the legal necessity of his family, that selling of property cannot be challenged. As the Karta of the family, he has the right to take the necessary decision for the legal necessity of the family.
Conditions when person can sell ancestral property
The Supreme Court of India has given many decisions on this question: when a current of the family can sell the ancestral property? There are some conditions in which the Karta of the family can sell the property such as:
- To settle the ancestral loan
- To pay the government dues
- For the maintenance of family members
- For the marriage of a family member
- For the medical treatment of family member
- To give the court expenses in a litigation of a family matter
- For the improvement of family property
These are the conditions in which the Karta of a family can sell the ancestral property and no other family member can challenge this. In simple words, a Karta of the family can sell the ancestral property in any case if there is a need to fulfil the family’s legal necessity. He cannot sell the ancestral property just to fulfil his personal needs.
Division of Ancestral property
If the ancestral property is divided through a partition deed, family arrangements, will of property or any other way, it will lose its ancestral character. The ancestral property will be equally divided between the family members of the class. After the division, this property will become his or her self-acquired property. It means after the legal division of the property, the person who has acquired the property, his legal heirs cannot claim right over that property.
If the person dies before making the will or division of the property, his ancestral property will be divided with the help of section 8 of the Hindu succession Act 1956.
Key points of ancestral property
- The ancestral property should be originally owned by the great grandfather
- There should no prior partition done
- Legal heirs under ancestral property can claim their share in the property anytime
- The child born in the family has the birthright over the ancestral property.
- The ancestral property loses its title if the Karta of the family divides the property during his lifetime.
- After the amendment in the Hindu succession act, now the daughter has equal rights to the ancestral property of her father.
- A person cannot sell all ancestral property without the prior permission of legal heirs.
- The Karta can only sell the ancestral property to fulfil the legal needs of his family.
Will of ancestral property
A person can will his ancestral property by taking some due care while writing the Will of property:
- He cannot will the whole property in which other family members are coparceners
- The person can make the will of his share in the property.
- If there is no legal heir left in the property, the person can make the will of ancestral property.
- If all the coparceners in the property allow him to make the will of property.
Frequently asked questions
Can a person sell ancestral property? Can I claim my father’s property?
You can claim your father’s ancestral property when he is alive. You can take your share from the ancestral property anytime. But if your father has self-acquired property, you cannot claim that property.
Can a person sell ancestral property?
No, a person cannot shelter ancestral property without taking the prior permission of other legal heirs in that property.
The legal heirs have the right over the property of their father. In the case of ancestral property, children can ask for their share during the lifetime of their father but if he is on the self-acquired property, their children whether son or daughter cannot claim or ask for the share in that self-acquired property. A father is free to make the decision whether he wants to transfer his property to his son, daughter or any other third person.