What is Ancestral Property?
A property which is acquired by a Great Grandfather and is passed down undivided to the next three generations up to the present generation of great grandson/granddaughter is known as ancestral property.
The same was defined by the Punjab and Haryana High Court in Gurdip Kaur vs Ghamand Singh Dewa Singh (AIR 1965 P H 238). The dictionary meaning of Ancestral Property – “property which has been inherited from the ancestors” was accepted by the Court. A property inherited from a father, father’s father or father’s father’s father is ancestral property.
Who can acquire Ancestral Property?
In Arshnoor Singh vs. Harpal Kaur (AIR 2019 SC 3098), it was held by the Hon’ble Supreme Court that, “Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors up to three degrees above him, then his male legal heirs up to three degrees below him, would get an equal right as coparceners in that property.”
The descendants of the owner – namely the ‘coparceners’ can acquire the ancestral property. They can each claim their own share by filing a suit for partition.
Prior to the 2005 amendment to the Hindu Succession Act, daughters were not entitled to any share in the ancestral property.
However, after the amendment a daughter, married or unmarried has the same rights as the son to the property.
Rights of Children in Ancestral Property
The rights in ancestral property are determined per stripes. It means the descendants will inherit shares in equal proportions to that of the individual they are representing.
They acquire their right in ancestral property by the virtue of their birth.
The following diagram illustrates how ancestral property is divided.
Claim of NRIs in Ancestral Property
An NRI is entitled to his share on the ancestral property in the same manner as any other citizen of India.
Even though an NRI needs special permission from the Reserve Bank of India (RBI) in order to purchase a plantation or a farmhouse, ancestral property of a similar nature can be inherited.
If the NRI is unable to come to India for the execution of the partition deed, he can do the same by giving a person a General Power of Attorney (GPA).
Properties that would be treated as self-acquired and not be covered under ancestral properties
In Maktul v Mst. Manbhari and Others (AIR 1958 SC 918), it was held by the Hon’ble Supreme Court that the only property that can be called ancestral property is property inherited by person from father, grandfather and great grandfather. This implies that only that property which has flown undivided across 4 generations is called ancestral property.
Once an ancestral property is partitioned amongst the coparceners it loses the characteristic of ancestral property and becomes self-acquired property.
Property which is acquired by a person during his lifetime is not Ancestral Property. It is classified as ‘self-acquired’ property. The partition of this can be done in any manner as per the wish of the owner through his will. The ways of getting ‘self-acquired property’ are:
- Using own resources to purchase
- Received as a gift
- Received as a legal heir
- Received through a Will
- In case of an intestate of a Hindu, the Property is devolved as per the provisions of the Section 8 of the Hindu Succession Act, 1956.