One can acquire (or) own a real estate property through different ways. You can invest your hard-earned money and buy a property (or) you can acquire a property through a Will (or) you may get it through inheritance also.
We also often hear people saying that we own an ‘Ancestral Property’. What is the difference between a self-acquired property and an ancestral property?
When can we call a property as an Ancestral property?
An ancestral property is a property acquired by your great grandfather (Hindu) which has been passed down from generation to generation (your grandfather and father) up to the present generation (you) without being divided or partitioned by your family.
So, it has to primarily meet two conditions for the property to qualify as your ancestral property;
- The property should be four generations old &
- It should not have been divided or partitioned by the previous three generations.
Then, what is a Self-acquired property?
Self acquired property is the one that you have purchased/ acquired from your own income / resources. It also includes property obtained or inherited as a legal heir or by Will or through a Gift deed.
You get a share (inherit) in your ancestral property by birth. In case of self-acquired property, you can inherit only on the death of the owner of the property. If your father owns a self-acquired property and also an ancestral property, he has the right to exclude you (son/daughter) from inheriting his self-acquired property. However, he can’t deny your share in the ancestral property.
If you would like to sell, dispose, or partition a property, are the rules for these two different kinds of properties same? What about the rules concerning inheritance / succession related to ancestral property based on your religion?
Concepts Ancestral Property & Hindu law
Below are some of the important points on Ancestral property;
- As discussed above, the property should have been acquired by your great grand-father and no partition has been done.
- It should not have been divided by the members of a joint Hindu family as once a division of the property takes place, the share or portion which each member (Coparcener) gets after the division becomes his or her self acquired property.
- The right to a share in the ancestral property comes by birth.
- The share of each generation is first determined and the successive generations in turn has to sub-divide what has been inherited by their respective predecessor.
- Kindly note that if a property has been inherited from your mother / grand mother / uncle or even your brother, such property is not considered as an ancestral property.
How hindu ancestral property will be divided among his successors?
Partition can be made by mere declaration to separate, Partition by Notice, Conversion to Another Faith, under Marriage Act, Partition by Agreement, Partition by Arbitration, Partition by Father, and Partition by Suits.
When a division / partition takes place between brothers after partition they will take equal shares in the property. If there are 3 brothers then each one will take 1/3 rd share in the property.
Can daughters inherit Hindu ancestral property?
Yes, under Hindu Succession (Amendment) Act 2005 even daughter(s) are entitled to a share in the property along with their male siblings. At present, a daughter has the same rights in the property of her father on par with a son.
But, kindly note that Daughters cannot inherit ancestral property if father has died before 2005. Therefore, if a person (father) had passed away before 2005, the daughter cannot claim an equal share in the property. She is however entitled to a certain amount of maintenance if she is unmarried.
Latest Verdict by the Supreme Court on ‘Daughters’ Equal Rights to Hindu Family Property’;
- The Supreme Court has clarified (on 11-Aug-2020) that daughters will have equal coparcenary (joint heirship) rights in joint Hindu family property even if the father died before the Hindu Succession (Amendment) Act, 2005. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005.
- The daughters confer the status of ‘coparcener’ whether they were born before or after amendment to Hindu Succession Act (2005) in the same manner as a son with the same rights and liabilities. (Coparcener is a term used for a person who assumes a legal right in parental property by birth only.)
- The verdict also makes it clear the amendment to the Hindu Succession Act, 1956, granting equal rights to daughters to inherit ancestral property, would have retrospective effect.
Can I (head of family) sell the ancestral property without the consent of other family members?
No – You need to get the consent of other members of the family to divide or sell the property.
Can I consider a property gifted by my father as an ancestral property?
No – Property gifted by a father to his son could not become ancestral property in the hands of the son simply by reason of the fact that he got it from his father. It remains as a self-acquired property for you. If this property remains undivided for next four generations, even then it will not be considered as an ancestral property.
Can I include my share in ancestral property in my WILL?
I believe that ancestral properties can not be WILLed selectively, ignoring few legal heirs, as each one of your legal heir has the right to get a share in the property.
Are the above rules applicable for a self-acquired property too?
As far as your self acquired property is concerned, you are free to dispose of it in any manner you like.
Can illegitimate children inherit ancestral property?
They can only acquire a share in self-acquired property and not in the ancestral property.
If an Hindu converts to other religion, will he/she has a claim in Parents property? Can they inherit the property?
A Hindu convert does not lose the right to inherit property under the Hindu Succession Act, 1956. For example : A Hindu Daughter after Converting to Islam not loses Right to Inherit Property. But her children will not inherit the property form their grand-parents.
Concepts of Ancestral property & other Religions
Under Muslim Law, there is no concept of Ancestral property (or) right of inheritance by birth. A person can leave behind a WILL on any type of property. The legal heir can inherit any type of property only on death of the owner of the property.
The succession rules amongst the Indian Christians is governed by the Indian Succession Act, 1925. There is no concept of ancestral property under the Indian Succession Act. All types of properties owned by an Indian Christian can be willed away by him/her by executing a Will.
It is very clear that law treats both types of properties (ancestral & self-acquired) very differently. So, it is very important that you identify a property as either self-acquired or ancestral one, so that you can plan division of your Estate to your legal heirs.
In case, you are a legal heir, identifying the type of property can help you claim a rightful share in your family’s ancestral property.
Continue reading other related articles :
- 5 ways of transferring your Real Estate Property
- Nominee Vs Legal Heir : Who will inherit your Assets?
- Checklist of Important Property Documents in India | Legal Checklist for Property Purchase
(Image courtesy of Stuart Miles at FreeDigitalPhotos.net & Facebook / Social Media Image courtesy : Homeonline.com) (Post first published on : 12-April-2017)