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Facts you must know about ancestral property in India

Posted by Balaji on April 8, 2021
| 2 Comments

If you are to inherit an immovable possession, it is vital that you learn some essential facts about an ancestral property. The laws of inheritance enable you to claim your ancestral property, which is an immovable possession that belonged to your ancestors.  The stakeholders, on the other hand, always have misconceptions about the properties they hope to inherit from their elders and make mistakes that often lead to legal battles. As a result, it’s important to learn some essential facts about the ancestral property.

How many generations can claim ancestral property?

Four generations of the male lineage have a claim to a classified ancestral property that has remained undivided. This means that 4 generations have inheritance rights on the property.  In other words, an undivided ancestral land has inheritance rights to the father, grandfather, great grandfather, and great-great-grandfather.

Also, if anyone inherits a property from any of his paternal ancestors three generations above him, his legal heirs three generations below him get equal rights as successors in that property.

What is an undivided property?

For example consider if Raj decided to divide the property between Raghu and his other sons, the chain will be broken and the property inherited by Raghu will no longer qualify as an ancestral property but a self-acquired property. Simply stated, no division should take place up to four generations for a property to remain ancestral. When an ancestral property is separated by a partition deed or a family arrangement, it ceases to be an ancestral land as soon as the arrangement comes into effect. In other words, when a joint Hindu family divides or separates, the property becomes self-acquired in the hands of the family member who receives it.

The Supreme Court ruled on March 2, 2016, in the case of Uttam versus Saubhag Singh & Others, that a joint family property ceases to be a joint family property in the hands of various persons who have succeeded to it under Section 8 of the Hindu Succession Act, 1956 because they hold the property as tenants in common and not as joint tenants.

Properties obtained through a gift

The properties acquired by a gift deed and through the execution of a will, do not count as ancestral properties. Also, a father can give this self-acquired property to a third party through a gift deed during his lifetime. After the donor’s death, property ownership is transferred through a will.

Exclusion from ancestral property

One is free to write a will and exclude sons as well as daughters from inheriting their self-acquired property. The Delhi High Court ruled in 2016 that an adult son’s claim to his parents’ self-acquired property had no legal claim.  The HC order stated that “When the house is a self-acquired house of the parents, a son, whether married or unmarried, has no legal right to live in that house and can only live in that house at the mercy of his parents for as long as the parents allow.”

However, this is not the case with ancestral property. A father does not have the choice of refusing his son’s rights to his ancestral property. However, In November 2018, the Delhi High Court ruled that harassed parents have the right to evict their children from any form of property. The HC ruled that the form of property would not be a deterrent in evicting children and legal heirs who mistreat their elderly parents.

ancestral property

Start of ownership right in an ancestral property

In the case of ancestral properties, the right of the stakeholder arises at the time of his birth. In other forms of inheritance, such as inheritance through a will, the right arises at the time of the owner’s death. So, in the above-stated example, Shyam’s right in his ancestral property will arise at the time of his birth and not at the time of his father Ram’s demise.

Share of each generation in ancestral property

The share of each generation is determined first, and then the share of successive generations is subdivided from that. It’s worth noting that as new members are added to the family, each member’s share of the ancestral property decreases. That means your stake in the property will become insignificant at some stage and no longer be worth pursuing.

The extent of claim over ancestral property

The ancestral property will have a prior claim on the previous generation. This means that the next generation’s claim will be a sub-division of what’s left after the property is divided by the previous generation’s stakeholders. Simply put, the stakeholder rights in an ancestral land are calculated on a per-stripe basis rather than a per-capita basis.

Women’s right in ancestral property

Women did not have a right to their ancestral property after marriage before an amendment to the Hindu Succession Act, 1956, since they were not considered successors. 

Women have legal rights in their ancestral property since the Hindu Succession (Amendment) Act, 2005, amended the succession law. Both sons and daughters are now coparceners in the family, with equal rights and obligations in relation to the property. Even after her marriage, a daughter remains a coparcener on the property.

While the SC stated that a daughter has the same rights to ancestral property as a son, it also stated that for this provision to take effect, both the father and the daughter had to be alive on September 9, 2005. However, in 2018, the Supreme Court ruled that a daughter would inherit her deceased father’s property regardless of whether or not the father was alive at the time of death. Property inherited from one’s maternal side, on the other hand, does not count as ancestral property.

Laws governing ancestral properties

While the Hindu Succession Act, 1956 governs the division of ancestral property among

Hindus, Sikhs, Jains, and Buddhists. The Indian Succession Act, 1925 governs the

division of ancestral properties among Christians. The Muslim Personal Law (Shariat)

Application Act, 1937, applies in the case of Muslims.

Men and women are treated equally in Christian inheritance and succession laws.

Furthermore, their property is considered as self-acquired, regardless of how it was

acquired, and no one else can contend for it during one’s lifetime.

Under Muslim law, there are two types, who are eligible to a certain share of the

deceased’s property and the residuary, next who takes up the share in the property

that is left over after the sharers have taken their share.

Who can sell an ancestral property?

While the Hindu law gives the head of a Hindu undivided family (HUF) the authority to

control the family properties, an ancestral land cannot be sold solely on the decision of

one or part-owners, since four generations have a claim to it. To sell an undivided

ancestral land, each stakeholder’s consent will be necessary. All coparceners, including

daughters, can seek partition and sale of the ancestral property.  A legal notice may be

sent to the offending party, demanding your rights, if a stakeholder is denied his share

in the property or if one member wishes to sell the property without consulting the

other members.

2 thoughts on “Facts you must know about ancestral property in India

  • Parag Amitkumar Bhavsar
    on August 28, 2021

    I want to know.My father and my uncel are stakeholder for ancestral property.After passed away hy uncle class1 inheritors of him wants to leave right.So which documents are required? Do we need to meke sale deed agreement or can be done procedure on any stamp paper by understanding agreememt withou paying stampduty.

    • Balaji
      on August 28, 2021

      Dear Parag, Thanks for your comment. But I didn’t understand your question here. If you are asking if after the demise of your uncle what should you do to set the documents right? You will first need a family tree endorsed by your local tahsildar or relevant authority. All the legal heirs of your uncle as per the family tree [hindu succession act] needs to be a party to it. Please consult a expert legal advocate with all relevant documents of the property further. Best wishes,.

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