Ancestral Property: A Comprehensive List Of Unexplored Facts

You must have watched those movies where a person suddenly gets informed that their grandparents have passed away and left them a vast mansion. Is this what you can call ancestral property?

There might be many questions currently revolving around in your mind, and you will get all your answers in this article. This article will discuss all the nitty gritty related to ancestral property and all you need to know about it.

What is an ancestral property?

An ancestral property is an undivided asset that has been passed through generations. Such properties can be claimed by the immediate four generations of the same family for their share.

However, note that once an ancestral property gets divided among the various stakeholders, it will no longer be an ancestral heritage property. In that case, it will fall under the category of self-acquired property.

The value of the ancestral property relies on the heritage it carries for generations of staying an undivided property. Its actual worth is perceived from the reputation it has built for itself for years. Such properties are the carrier of tradition and culture that are passed on to each generation.

ancestral property transfer — Source: Pormezz/ Shutterstock

How many generations can claim their ancestral property?

As per Indian law of property rights, four generations of male descendants can claim the property to protect an undivided classic ancestral property. A son, a father, a grandfather, and a great-grandfather can ask for a share of the property.

Also, it would help if you remembered that whenever a person inherits a property from his paternal line of the family, it can be claimed up to three generations above him. This rule will be equally valid for his descendants up to three immediate generations. They would be known as coparceners of the property.

Let’s understand this more in-depth with the help of an example. Anurag has an ancestral property in West Bengal which is eligible to inherit. This inheritance would be valid up until his great-grandson Ravi.

Both the males will share equal rights on the ancestral property and can claim. They even have the authority to challenge the other party in a court of law.

Similarly, the rights which Ravi, after inheriting the property rights from his father, his descendants up to generation will be able to enjoy the same benefits from this prosperity as they, too, have inherited the property as a coparcener.

What is Undivided property?

Undivided property is a property that all the ancestors have inherited conjointly, without dividing it among individuals. When such an undivided property is divided among the ancestors, it changes to a self-acquired property. If all four generations hold joint custody of the property, it becomes an undivided property.

Let’s look at the verdict passed by the supreme court on March 2, 2016, on the case of Uttam v. Saubhag Singh & others. According to the judgment, a family property will cease to be in its original form until it is divided and no longer the joint tenant holder of the property as per Section 8 of the Hindu Succession Act,1956. Sounds confusing. Isn’t it?

It’s time to simplify it with an example – Roshan and Rohan are both brothers, and Roshan has two sons. Now, both brothers have jointly decided to divide the property amongst themselves. Based on a mutual decision.

However, as soon as the deed gets finalized, the ancestral property they divided among themselves will no longer stay ancestral, as both parties will no longer qualify as joint owners. The house will now fall under the self-acquired property category, losing its heritage value.

A property received as a gift can be considered ancestral property?

Gift deeds do not qualify a person to acquire ancestral property. Properties you have received in the form of a gift deed or through a will do not fall under the category of ancestral property. A gift deed or a will execution does not restrict itself to the family member in the eyes of the law.

This way, any third person receiving a property will deem it an ancestral property that doesn’t fall under the definition itself. However, you probably want to know the difference between a gift deed and a will.

So here’s the answer for you! A gift deed is gifted or presented to a person that the recipient can use throughout the donor’s lifetime. On the other hand, a recipient can not execute a will or transfer the property until the donor’s death.

But there’s one thing in common! Neither a will nor a gift deed falls under the category of ancestral property.

What exclusions does the law provide?

In recent years, many new amendments have become a part of the law, along with passing judgment from various high and supreme court benches.

The first is the right to exclude one’s ownership from a self-acquired property. This amendment was proposed in 2016 by the Delhi High Court. According to it, if a parent wants, they can write a will and exclude a person, be it a son or daughter, from their self-acquired property.

Other notable exclusions include that an adult has no authority over his parent’s self-acquired property. The son holds absolutely no right to live in his parent’s house. If he stays back, he is living on their mercy; in that case, the inherited property will not be a part of ancestral property.

Under ancestral property, as all four generations hold equal rights over the house, a father can decide to exclude his son from possessing ancestral properties, which, too, has an exception.

As per the 2018 verdict by Delhi high court, if the child harasses his parents in any form, the parents hold the authority to take back the son’s possession from any property, even if it is ancestral property.

The Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules 2017 also hold similar grounds for parents wishing to evict their children from any property.

At what age can you claim your ancestral property?

Even a newborn child can claim ancestral property unless the owner wants to exclude an individual and mentions that in a will.

Here’s an example for you. Ravi has a grandson named Kishan. They both had ancestral property and self-acquired property. In the former category, Kishan became a stakeholder at birth.

In contrast, if he wants to place his ownership of the self-acquired property, he has to wait until the death of Ravi to execute his will.

If Ravi mentions in his will that he doesn’t want to give a part of his property to Kishan, then there’s nothing that Kishan can do about it.

What proportion of share does each generation receive?

First, the portion owed to each generation is calculated, and then that amount is further distributed among the following generations. As more and more people join the family, the proportion of the inheritance that goes to each individual diminishes.

As a result, this implies that your stake in the property may shrink to the point where it’s no longer worthwhile to continue fighting.

To what extent can a person claim ancestral property?

Priority shall be given to the prior generation when claiming an ancestral property. As a result, it signifies that the claim of future generations will be a subdivision of what remains after the property is split among the previous generation’s stakeholders.

Generally speaking, the rights of the stakeholders in an ancestral property are determined on a per-stripe basis instead of a per-person basis.

Let’s simplify with an example. Harsh has three brothers. The property will be divided amongst the four brothers during the share division. After that, they can separate their family from their share.

What rights do women have on ancestral property?

Before the amendment in the Hindu Succession Act 1956, women did not hold any authority or right on any form of property, even if that was her ancestral property. After the amendment made in 2005, now a woman also holds equal footing as a coparcener.

Both sons and daughters of the family have an equal right to inherit ancestral property from their father’s side. However, the same rule does not apply to the properties on the maternal side.

women equal rights — Source: Brian A Jackson/ Shutterstock

Which laws govern the ancestral properties?

The following law supersedes the rules made for ancestral properties:

The Hindu Succession Act,1956, for Hindus, Sikhs, Jains, and Buddhists.
Indian Succession Act, 1925 for Christians.
Muslim Personal Law (Shariat) Application Act, 1937 for Muslims.

What right does a wife have over her husband’s ancestral property?

In case the husband dies, and he was a coparcener of ancestral property, then by the power vested by the Hindu Succession Act,1956, she holds the absolute entitlement to get a share on behalf of her husband as his Class-1 heir.

In the case of self-acquired property, if the husband leaves behind instructions related to his entitlement to his shares, then his wishes would take superiority.

Here’s what you must know about the property rights of a second wife.

Do children born in a live-in relationship have the right to their father’s property?

As per the verdict ruled by the supreme court in June 2022, any children born out of a live-in-relationship can claim their birthright to their father’s ancestral property.

The supreme court’s verdict says that if a man and a woman are living together for several years, similar to a married couple, it will be presumed that marriage has already taken place.

Such presumption falls under section 114 of the Indian Evidence Act. However, this should be kept in mind the idea is for marriage, and no other form of the relationship falls under this criteria.

Who, according to the law, can sell ancestral property?

The nature of ancestral property is very similar to a Hindu Undivided Family (HUF). Therefore, the head might have the authority to manage the properties, but he cannot, on his sole decision, sell the property without even consulting with others.

He needs to get consent from all the other owners too. It is imminent that all the stakeholders provide their consent before an undivided ancestral property is sold.

All coparceners, even if they are daughters, have the right to call for partition or sale of the property. A legal notice could get issued in the person’s name who decides to sell without consulting or has denied acknowledging the plaintiff’s claim.

Summary

Understanding ancestral property may not be as simple as it may look. It is a multi-layer subject with several rulings from supreme court benches to prove a fact.

Now that you have a basic understanding of the subject feel free to reach out for an expert opinion who can guide you in the best possible way. Are you ready to take a plunge and deal with issues related to your ancestral property?