Ancestral Property

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Supreme Court puts Final Death Nail on Concepts of

Ancestral Property & Joint Family Property, Read


Judgment

03 Mar 2016

Categories : Latest News Uncategorized


March,3,2016:

In a Landmark Judgment pronounced by Supreme Court of India yesterday in case


titled Uttam vs Subagh Singh, Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has
relaid the Law on to the Concept of Ancestral Property.

Apex Court ruled that a conjoint reading of Sections 4, 8 and 19 of the Hindu
Succession Act, 1956, after joint family property has been distributed in accordance
with Section 8 on principles of intestacy, the joint family property ceases to be joint
family property in the hands of the various persons who have succeeded to it as they
hold the property as tenants in common and not as joint tenants.

The suit was filed by a Son for partition, in Devas, Madhya Pradesh, against his father
and his father’s three brothers. He claimed a 1/8th share in the suit property on the
footing that the suit property was ancestral property, and that, being a coparcener, he
had a right by birth in the said property in accordance with the Mitakshara Law.
It was ruled by SC that on the date of the birth of the appellant in 1977 the said
ancestral property, not being joint family property, the suit for partition of such
property would not be maintainable.

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of National Commission for Minorities

Concept of Ancestral Property

Property inherited by a Hindu from his father, father’s father or father’s fathers’
father, is ancestral property.

Any property acquired by the Hindu great grand father, which then passes undivided
down the next three generations up to the present generation of great grand
son/daughter.
1. This property should be four generation old.
2. It should not have been divided by the users in the joint Hindu family as once a
division of the property takes place, the share or portion which each Coparcener gets
after the division becomes his or her self acquired property.
3. The right to a share in ancestral or coparcenary property accrues by birth itself,
unlike other forms of inheritance, where inheritance opens only on the death of the
owner.
4. The rights in ancestral property are determined per stripes and not per capita. Share
of each generation is first determined and the successive generations in turn sub
divide what has been inherited by their respective predecessor.
5. Properties inherited from mother, grandmother, uncle and even brother is not
ancestral property. Property inherited by will and gift are not ancestral properties.

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6.Self acquired property can become ancestral property if it is thrown into the pool of
ancestral properties and enjoyed in common.

In Mulla’s Principles of Hindu Law (15th Edition), it is stated at page 289 :


“………. if A inherits property, whether movable or immovable, from his father or
father’s father, or father’s father’s father, it is ancestral property as regards his male
issue. If A has no son, son’s son, or son’s son’s son in existence at the time when he
inherits the property, he holds the property as absolute owner thereof, and he can deal
with it as he pleases ………. A person inheriting property from his three immediate
paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons’ sons
and sons’ sons’ sons’ but as regards other relations he holds it and is entitled to hold
it, as his absolute property.”

In case titled Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen
and Others, (1986) 3 SCC 567, it was held that after passing of the Hindu
Succession Act, 1956 the traditional view that on inheritance of an immovable
property from paternal ancestors up to three degrees, automatically an HUF came into
existence, no longer remained the legal position in view of Section 8 of the Hindu
Succession Act, 1956.

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This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter
followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987)
1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming
into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral
property after 1956 does not create an HUF property and inheritance of ancestral
property after 1956 therefore does not result in creation of an HUF property.

Thus in law ancestral property can only become an HUF property if inheritance is
before 1956, and such HUF property therefore which came into existence before 1956
continues as such even after 1956. In such a case, since an HUF already existed prior
to 1956, thereafter, since the same HUF with its properties continues, the status of
joint Hindu family/HUF properties continues, and only in such a case, members of
such joint Hindu family are coparceners entitling them to a share in the HUF
properties.

Classification of property under Hindu Law


The property under Hindu Law can be classified under two heads:-

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(i) Coparcenary property; and

(ii) Separate property.

Coparcenary property is again divisible into-

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(i) ancestral property and

(ii) joint family property which is not ancestral.

This latter kind of property consists of property acquired with the aid of ancestral
property and property acquired by the individual coparcener without such aid but
treated by them as property of the whole family.

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Law laid by Delhi High Court

In case titled Surender Kumar vs Dhani Ram CS (OS) No.1737/2012 decided


on 18th January, 2016 Hon'ble Mr. J. Valmiki Mehta of Delhi High Court ruled-

(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no
HUF existing at the time of the death of such a person, inheritance of an immovable
property of such a person by his successors-in-interest is no doubt inheritance of an
‘ancestral’ property but the inheritance is as a self acquired property in the hands of
the successor and not as an HUF property although the successor(s) indeed inherits
‘ancestral’ property i.e a property belonging to his paternal ancestor.

(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come
into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is
if an individual’s property is thrown into a common hotchpotch.
Also, once a property is thrown into a common hotchpotch, it is necessary that the
exact details of the specific date/month/year etc of creation of an HUF for the first
time by throwing a property into a common hotchpotch have to be clearly pleaded and
mentioned and which requirement is a legal requirement because of Order VI Rule 4
CPC which provides that all necessary factual details of the cause of action must be
clearly stated.

Thus, if an HUF property exists because of its such creation by throwing of self-
acquired property by a person in the common hotchpotch, consequently there is
entitlement in coparceners etc to a share in such HUF property.

(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956,
and such status of parties qua the properties has continued after 1956 with respect to
properties inherited prior to 1956 from paternal ancestors. Once that status and
position continues even after 1956; of the HUF and of its properties existing; a
coparcener etc will have a right to seek partition of the properties.

(iv) Even before 1956, an HUF can come into existence even without inheritance of
ancestral property from paternal ancestors, as HUF could have been created prior to
1956 by throwing of individual property into a common hotchpotch. If such an HUF
continues even after 1956, then in such a case a coparcener etc of an HUF was entitled
to partition of the HUF property.

Law laid by Supreme Court now

The law, therefore, insofar as it applies to joint family property governed by the
Mitakshara School, prior to the amendment of 2005, could therefore be summarized
as follows:-

(i) When a male Hindu dies after the commencement of the Hindu Succession Act,
1956, having at the time of his death an interest in Mitakshara coparcenary property,
his interest in the property will devolve by survivorship upon the surviving members
of the coparcenary (vide Section 6).

(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act,


making it clear that notwithstanding anything contained in the Act, the interest of a
male Hindu in Mitakshara coparcenary property is property that can be disposed of by
him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to
Section 6, which states that if such a male Hindu had died leaving behind a female
relative specified in Class I of the Schedule or a male relative specified in that Class
who claims through such female relative surviving him, then the interest of the
deceased in the coparcenary property would devolve by testamentary or intestate
succession, and not by survivorship.

(iv) In order to determine the share of the Hindu male coparcener who is governed by
Section 6 proviso, a partition is effected by operation of law immediately before his
death. In this partition, all the coparceners and the male Hindu’s widow get a share in
the joint family property.

(v) On the application of Section 8 of the Act, either by reason of the death of a male
Hindu leaving self-acquired property or by the application of Section 6 proviso, such
property would devolve only by intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family
property has been distributed in accordance with section 8 on principles of intestacy,
the joint family property ceases to be joint family property in the hands of the various
persons who have succeeded to it as they hold the property as tenants in common and
not as joint tenants

Read Full Judgment Here-

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