By

Y.SRINIVASA RAO, PRINCIPAL SENIOR CIVIL JUDGE, TIRUPATI, ANDHRA PRADESH.

TABLE OF CONTENTS:—

1. Introduction
2. What is an “ancestral property”?
3. Principles under Mitakshara School about Ancestral property
4. Self acquired property
5. Can a father, by changing the mode of devolution, change the character of the property?
6. Separate property
7. Separate property – the proposition of law
8. Devolution of joint family property by survivorship
9. Fathers’ property – Grand father’s property
   
   
   Introduction:— Ancestral property is one of the species of joint family property and it is well-settled principle under the Hindu law. What is not ancestral property is that property that was inherited from any ancestor or ancestress other than father, father’s father and father’s father’s father is not an “ancestral property.”

What is an “ancestral property”?
Under the Mitakshara School, a Hindu male succceds to the property of his father, father’s father or father’s father’s father, and then it can be said that as ancestral property. Later, his son, son’s son and son’s son’s son will get an interest in such property by birth.

The rule of Hindu law is well settled that the propertywhich a man inherits from any of his three immediate paternal ancestors, namely, his father, father’s father and father’s father’s father is ancestral property as regards his male issue, and his son acquires jointly with him an interest in it by birth. Such property is held by him in coparcenary with his male issue, and the doctrine of survivorship applies to it. — See. Muhammad Hussaln Khan v. Babu Kishva Nandan Sahai, (1937) 641. A. 250; See also. D.F. Mulla’s Hindu Law 245 (13th Edition, 1966)

What Privy Council said is that ——
“The rule of Hindu law is well settled that the property which a man inherits from any of his three immediate paternal ancestors, namely, his father, father’s father and father’s father’s father is ancestral property as regards his male issue, and his son acquires jointly with him an interest in it by birth. Such property is held by him in coparcenary with his male issue, and the doctrine of survivorship applies to it.” —- See. Muhammad Husain Khan v. Kishva Nandan, 64 I. a. 250 : at. p. 266 : (A. I. R. (24) 1937 P. C. 233).

Principles under Mitakshara School about Ancestral property :—

1. The ancestral property means that it is inherited by a Hindu male from his father, father’s father and father’s father’s father, in the hands of a Hindu male is joint family property or HUF property qua his son, son’s son or son’s son’s son.
2. It is  in the hands of a Hindu male is not HUF property in respect of any other person except qua his son, son’s son and son’s son’s son. This means that so long as he does not get a son, son’s son or son’s son’s son, he can treat it as his separate property.
3. It is in the hands of a Hindu male who has no son, son’s son, or son’s son’s son will become HUF property at any time when he gets any one of these. See. Mulla’s Hindu Law; Article titled: “Ancestral Property After Hindu Succession Act, 1956—Joint Family Property or Separate Property? A Muddle Under Tax Cases – 25 JILI (1983) 1”; D.F. Mulla’s Hindu Law 245 (13th Efition1966) and Vineeta Sharma vs Rakesh Sharma Judgment dated 11 August, 2020., , (2020) 9 SCC 1.

Self acquired property:— The self-acquired property of a Hindu father which his sons who were joint with him get on his death is in their hands joint family property. As between the sons and their descendants, it is subject to all the incidents of a coparcenary. See. Mt. Ram Dei vs Mt. Gyarsi And Ors.,AIR 1949 All 545

Can a father, by changing the mode of devolution, change the character of the property? 

The property being father’s separate property, he certainly had the right to give it away in gift or alienate it in any other manner. 
As was held in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar,  AIR 1953 SC 495, the character of the property in the hands of the donee-son would depend upon the intention of the donor-father. If he gave it as a separate property, it would be a separate property, and if he gave it as joint family property, it would have that character.

Separate property:-

The son can assert this equal right with the father only when the grandfather’s property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestralproperty if and when the father inherits such propertyon the death of the grandfather or receives it by partition, made by the grandfather himself during his life-time. On both these occasions, the grandfather’s property comes to the father by virtue of the latter’s legal right as a son or descendent of the former and consequently it becomes ancestral property in his hands.

The separate property of a Hindu becomes ancestral property in the hands of his son so as to give him in it a coparcenary interest only when (a) it devolves on him by succession, or the father, during his lifetime, divides it among his sons.

Separate property – the proposition of law:—

To say explicitly, the proposition of law is very simple. When a Hindu gets his father’s separate property by inheritance, he holds it as a coparcenary property with his son or sons if he has any at that time, and if he has none, then the moment he gets one. In the interlude, i.e., between the period from the death of his father when he inherits the property and a son is born to him, he can treat the property as his separate property and may alienate it, and if, by the time he gets a son, no property is left, the son will obviously get no interest. But if he does not alienate and the inherited property is still with him, the moment a son is born to him, the son becomes a coparcener with him.

If we understood the above proposition of law, it is unnecessary to discuss about logic of vesting, divesting and revesting.

Under Mitakshara law, the grandson’s rights arise at his birth in ancestral property and not subsequently. The grandson’s rights, at the death of his grandfather, devolve upon him, under the Mitakshara law, prior to its modification by the statutory law, simultaneously with those of his father.See. Commissioner of Income-Tax v. Ram Rakshpal (1968) 67 ITR 164.

A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. He may sell it or he may make a gift of it, or bequeath it by will, to any person he likes. It is not liable to partition, and, on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners. See. Commissioner of Income-Tax v. Ram Rakshpal (1968) 67 ITR 164.

1. In respect of the separate property was concerned, it devolved according to the provisions of the chapter inwhich section 8 was located but nothing in this section or inthe chapter dealt with the character of the property in the hands of the person on whom the property devolved by succession.
2. Neither section 6 nor section 8 nor section 30 affect this principle of Hindu law as to in what capacity or inwhat character the son would enjoy the property once he received it from his father in succession. See. Mulla’s Hindu Law. See also . Commissioner of Income Tax v. Bahubhai Mansukhbhai. (1977) 108 ITR 417 and Commissioner of Wealth-Tax v. Hamhadlal Manilal
3. Sections 6 and 8 of the Act only postulate as to how the property left by a male Hindu will be inherited by the surviving heirs. 
4. Secs. 6 and 8 of the Act do not in any manner say as to how this property will be treated in the hands of the heirs. And that section 4 of the Act cannot be interpreted to have abrogated the established principles of Mitakshara law.
5. If there is a conflict between Mitakshara law and the Act, the provisions of the Act will prevail. Where any field has been left uncovered by the provisions of the Act, the Mitakshara law will still continue to hold the field. See. Brij Lal v. Daulat Ram, (1977) 79 Punjab LR 27.

Devolution of joint family property by survivorship:— An inheritance subject to obstruction is explained in Mitakshara school. Here, two concepts are important.
1. Son’s birth-right; and

2. Devolution of joint family property by survivorship. 

To understand these two concepts, we have to refer to classification of property under School of Mitakshara. Again here, there are two concepts.

1. Apratibandha daya or unobstructed heritage; and
2. Sapratibandha daya or obstructed heritage

This classification under Mitakshara is linked with the above referred to two concepts of son’s birth-right and devolution of joint family property by survivorship.
Now, it is to be examined what unobstructed estate is. It is that, in the context of son’s birth-right, in which the son, son’s son and son’s son’s son have already an interest by the mere fact of their birth in that status. It is needless to state that If they survive, survivorship comes into play and they should take it by the mere fact of their survivorship.

Example:—- “A” , a Hindu male, has inherited an estate from his father, father’s father or father’s father’s father. If that be so, A’s his son has a vested right by virtue of his birth and will take the estate if he survives his father; in case he does not, his son will take the estate, and even if his son does not survive, his son’s son will take the estate. 
Next instance is such that, as was observed in Babu Anaji v. Ratnoji, I.L.R. (1897) XXI Bom. 319; and Bahadur Singh v. Mohar Singh (1901-02) XXIX I.A.I, the person who is next in apparent succession to an obstructed estate may at any moment find himself cut off by the interposition of a prior heir, such as, a son or widow. His right will accrue for the first time at the death of the actual holder and will be judged according to the existing estate of the family at that time. Any nearer heir who may then be in existence will completely exclude him, and if he should die before the succession opens, even though he would have succeeded had he survived, his heirs will not take it at all unless they happen to be the next heirs to the deceased. In other words, he cannot pass on to others rights which had accrued to him, nor can he bar, by any contract, the rights of those who, after his death, are the actual reversioners when the succession opens.

Fathers’ property – Grand father’s property :—

 Ancestral  property cannot be devolved by succession, however, it devolves by survivorship. Under Mitakshara as well as  Smritichandrika, the position is so clear that: “In the case of father’s property the ownership of father and son is unequal…. in the case of grandfather’s property, the ownership  and also independent power are both equal in the father and son. Whereas in the case of father’s property, while he is alive and free from defect, father alone possesses an independent power and not the son.”

The very definition of ancestral property/unobstructed heritage makes no difference between the father’s property and the grandfather’s property in respect of the son’s right to take it as ancestral property (unobstructed heritage) is concerned. That the right vested by birth in the son extends to property acquired by the father follows the rule- “Therefore it is a settled point that property inthe paternal or grand paternal estate is by birth….” See. Vijnaneshwara.

1. If the son has no right by birth in his father’s property, his son born before the grandfather’s death can have no right by birth in the grandfather’s property.
2. The grandson’s right by birth in the grandfather’s properly is only a logical result of the son’s right by birth in the father’s property.
3. When the property actually devolves upon him, he takes it subject to the interest they had already acquired. That is the basis of ancestral property. Thus, all properties which a man inherits from a direct male ancestor, not exceeding three degrees higher than himself, is ancestral property, and property inherited from any other ancestral or a collateral relation is not ancestral property . See. Muhammad Hussaln Khan v. Babu Kishva Nandan Sahai, (1937) 641. A. 250.
4. To say in short, under the Mitakshara School, when a Hindu male inherits property from his father, father’s father or father’s father’s father, the property in his hands is ancestral or joint family property in the sense that in it his son, son’s son and son’s son’s son acquire an interest by birth.
5. Where an HUF or Hindu joint family does not exist, it comes into existence for the first time on the death of the father, when sons inherit his separate property and constitute an HUF, and their son, son’s son and son’s son’s son acquire in that property an interest by birth. 
6. Under the Dayabhaga school, a son does not acquire any interest in any property by birth; but when the father dies, the sons succeeding him constitute a coparcenary and the coparcenary limit is the same as under the Mitakshara school.