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Riya Tayal | 30 Jan 2023

All About Claiming Your Share in Ancestral Property In India

All About Claiming Your Share in Ancestral Property In India

In general terms, an ancestral property is a property that belonged to one's ancestors. As per Hindu law, properties in India can be classified into two categories, i.e. an ancestral property and a self-acquired property. Ancestral property is a self-acquired property and undivided property of the grandfather of the concerned person. 

Now, let's start with the article and learn what ancestral property is and how one can claim a share in the ancestral property in India. 

Meaning of Ancestral Property

In legal terms, an ancestral property is a property or real estate inherited by up to four generations of male lineage. The right to a share in an ancestral property accrues by birth itself, unlike other inheritance forms, where legacy opens upon the death of the owner. 

Some common facts about ancestral property involve the following:

1. The right to a share in an ancestral property comes by birth.

2. Coparceners involving daughters can seek a partition and sale of the ancestral property as well secure his/her share.

3. Properties of the paternal ancestors cannot be sold without the consent of the successors. However, it can be claimed back by filing a suit in a court for partition.

4. In case your share is denied, you can send a legal notice demanding your rights.

5. The property is termed as an ancestral property provided it's not divided by the members of a joint Hindu family.

6. Once the inherited property is partitioned, the share that each coparcener receives becomes his/her self-acquired property.

7. The head of the Hindu undivided family has complete power to manage the family assets under Hindu law. But when it comes to rights and ownership over an ancestral property, each coparcener is entitled to getting his/her share.

8. Real estate acquired from the maternal side is not considered ancestral property. 

Share of Son & Father in Ancestral Property

The current owner of the ancestral property, i.e. father and his son, have equal ownership rights over the ancestral property in India. However, the share of each generation, i.e. the father and his siblings, is decided in advance, after which the successive generations have to sub-divide the portion inherited from their corresponding predecessor. 

Share of Daughters & Sons in Ancestral Property

In 2016, the Delhi High Court ruled that an adult son had no legal claim on the self-acquired property of his parents. As per the order- "Where 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 he can live in that house only at the mercy of his parents up to the time the parents allow". 

Once the ancestral property is partitioned between the family members, it would cease to be ancestral property. A father has an option to not will out his self-acquired property to his son. However, this is not valid in the case of ancestral property. 

The Hindu Succession (Amendment) Act, 2005 confers the status of a coparcener on a daughter offering equal rights with the son on ancestral property. Only male members of the Hindu family were coparceners before the amendment, which modified Section 6 of the original Hindu Succession Act of 1956 that didn't mention the rights of the daughter in coparcenary property. 

Laws Governing Ancestral Properties

While the ancestral property is divided under the provisions of the Hindu Succession Act, 1956, among Hindus, Jains, Sikhs and Buddhists. In contrast,  in the case of Christians, the rules in this reference are governed by the Indian Succession Act, 1925. In the case of Muslims, the provisions of the Muslim Personal Law (Shariat) Application Act, 1937, apply. 

Among Christians, the inheritance and succession rules treat women and men equally. Furthermore, their real estate is treated as self-acquired property, in spite of its mode of acquisition, and nobody else can contest for it during one's lifetime. 

Under the Muslim law, there are two kinds of heirs- the sharers, who are entitled to a certain share in the property of a deceased person and the residuary, who takes up the share in the real estate that is left over after the shares have been taken up by the sharers. 

Rights of a Wife in Her Husband's Ancestral property in India

As per the Hindu law, the wife of a man is entitled to get a share in the ancestral property of her husband in the capacity of his Class- I heir after his demise. Rules and regulations are not so easy when it comes to the self-acquired property of the husband. If the husband dies, leaving a will and cutting his wife off of his self-acquired property, his wishes will prevail. 

Also read: Pros of Buying Joint Property for Married Couples


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