Practical Questions on
ANCESTRAL PROPERTY
(Answers with support of the High Courts and the Supreme Court Rulings)
[PART-I]

By
Y.SRINIVASA RAO

Meaning of Ancestral property:-

Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property. [U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising out of SLP (C) No. 11785 OF 2007) Supreme Court of India ruling].

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.” [Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20] Again at page 291, it is stated :

“The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession.” [Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20].

The Hon’ble Supreme Court observed that “Ancestral property means, as regards sons, property inherited from a direct male lenial ancestor, and as regards collaterals property inherited from a common ancestor “.[Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099].

Under custom, the term `ancestral immovable property’ has been understood in the sense in which it has been defined in explanation 1 to Art. 59 of Rattigan’s Digest of Customary Law and under all canons of construction of statutes it will not be permissible to resort to the dictionary in preference to this definition. The term has a technical meaning in Hindu law and any use of the dictionary meaning of the term in construing statutes dealing with Hindu law subjects will be questionable. The same is the case where a statute regulates limitation for suits under custom.” [CASE NO.:Appeal (civil) 7122 of 1997, Ranbir singh and others Vs.Kartar Singh and others, DATE OF JUDGMENT: 25/02/2003] The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great-grandsons, they become joint owner’s coparceners with him. They become entitled to it due to their birth. [U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising out of SLP (C) No. 11785 OF 2007) Supreme Court of India ruling.]

What is separate property?

It is equally well settled that excluding the property inherited from a maternal grandfather the only property which can be characterised as ancestral property is the property inherited by a person from his father, father’s father, or father’s father. That means property inherited by a person from any other relation becomes his separate property and his male issue does not take any interest therein by birth. Thus property inherited by a person from collaterals such as a brother, uncle, ect., cannot be said to be ancestral property and his son cannot claim a shre therein as if it were ancestral property. There can, therefore, be no doubt that the property which the appellant inherited from his uncle (natural father) was his separate property in which his major son could not claim any share whatsoever. [Madanlal Phulchand Jain vs State Of Maharashtra And Ors, 1992 AIR 1254, 1992 SCR (2) 479].
Each son upon his birth takes an interest equal to that of his father in ancestral property
It is true that under the Mitakshara Law each son upon his birth takes an interest equal to that of his father in ancestral property, both movable and immoveable. This right is independent of his father.[Madanlal Phulchand Jain vs State Of Maharashtra And Ors, 1992 AIR 1254, 1992 SCR (2) 479].

Who is Coparcener?

Coparcener. One who shares (equally) with others in inheritance in the estate of a common ancestor [S. 6, expln. 1, Hindu Succession Act]”.

Daughter should be alive and her father should also be alive on the date of amendment Act,2005

A Bench comprising Hon’ble Justice Anil R Dave and Hon’ble Justice A.K. Goel, in its October 16, 2015, interpreted the succession law while setting aside the judgment of the Karnataka High Court in the case Prakash Vs Phulavati of 2010. The Hon’ble Karnataka High Court had held that daughters would be entitled to equal share even if father had died prior to September 9, 2005, when litigations over partition were pending in courts. The text of the 2005 amendment, the apex court said, itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement of the Hindu Succession (Amendment) Act, 2005.” “In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective,” the Hon’ble Supreme Court held. In the present amendment Act of 2005, the Hon’ble Apex court said, “There is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect.”“We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. It was further held that ”All that is required is that daughter should be alive and her father should also be alive on the date of amendment,”

What is coparcenery property?

Coparcenary property means and includes: (1) ancestral property, (2) acquisitions made by the coparceners with the help of ancestral property, (3) joint acquisition of the coparceners even without such help provided there was no proof of intention on their part that the property should not be treated as joint family property, and (4) separate property of the coparceners thrown inot the common stock. [Amit Johri vs Deepak Johri & Ors. (2014), Ruling of Delhi High Court].

Coparcenary property. The expression ‘Coparcenary property’ includes property in which the deceased husband had an interest as a joint owner during his life time and, therefore, ancestral property. Coparcenary property means the property which consists of ancestral property, or of joint acquisitions, or of property thrown into the common stock and accretions to such property.” [Uday Narendra Shah vs Narendra Amritlal Shah, NOTICE OF MOTION (L) NO. 2347 OF 2013 IN SUIT (L) NO. 1069 OF 2013. Bombay High Court ruling].

Ownership of father and son in ancestral property:

The foundation of the doctrine of equal ownership of father and son in ancestral property is the well known text of Yagnavalkya. Book 2. 129, which says: “The ownership of father and son is co-equal in the acquisitions of the grandfather, whether land, corody or chattel.” [C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243]

What is the right of a son in his father’s and grandfather’s estate ?

It is undoubtedly true that according to Mitakshara, the son has a right, by birth both in his father’s and grandfather’s estate but as has been jointed out before. a distinction is made in this respect by Maitakshara itself. In the ancestral or grand father’s property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominent interest in the same. It is obvious, however, that 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. [C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243].

When can the property of the grandfather normally vest in the father as ancestral property?
The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it by partition, made by the Grandfather himself during his lifetime. On both these occasions the grand father’s property comes to the father by virtue of the latter’s legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. [C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243].

Can father obtain grandfather’s property by way of gift?

But when the father obtains the grandfather’s property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. [C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243].
When can a property be reckoned as ancestral property?
To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. [C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243].

What can be exempted from partition of ancestral property?
Mitakshara refers to a text of Narada which says: “Excepting what is gained by valour, the wealth of a wife and what is acquired by science which are three sorts of property exempt from partition-, and any favour conferred by a father.” [C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243].

What are the rights of posthumous sons and sons born after partition?
Chapter 1, section 4 of Mitakshara deals with effects not liable to partition and property “obtained through the father’s favour” finds a place in the list of things of which no partition can be directed. This is emphasised in section 6 of chapter I which discusses the rights of posthumous sons or sons born after partition. In placitum 13 ‘of the section it is stated that though a son born after partition takes the whole of his father’s and mother’s property, yet if the father and mother has affectionately bestowed some property upon a separated son that must remain with him. [C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243].

What is the right of Mitakshara father in making partition of property?
A Mitakshara father can make a partition of both the ancestral and self-acquired property in his hands any time he likes even without the concurrence of his sons-, but if he chooses to make a partition. he has got to make it in accordance with +the directions laid down in the law. Even the extent of inequality, which is permissible as between the eldest and the Younger sons, is indicated in the text(3). Nothing depends upon his own favour or discretion. When, however, he makes a gift which is only an act of bounty, he is unfetterd in the exercise of his discretion by any rule or dictate of law. It is in these gifts obtained through the favour of the father that Vijnaneswar, following the earlier sages, declares the exclusive right of the sons. [C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243].

What a ”self-acquisition” is?
The definition is based upon the text of Yagnavalkya that “whatever is acquired by the coparcener himself without detriment to the father’s estate as present from a friend or a gift at nuptials, does not appertain to the co-heirs.” [C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243].

Does the property gifted by father to son become ancestral property?
A property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor. As the law is accepted and well settled that a Mitak- shara father has complete powers of disposition over his selfacquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of -interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken. [C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243].

When son gets a share in father’s property?
In Commr. of Wealth Tax. Kanpur v. Chander Sen, (1986) 3 SCC 567: (AIR 1986 SC 1753), where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father‟s property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as a Karta of his own undivided family but takes it in his individual capacity.[Amit Johri vs Deepak Johri & Ors. (2014), Ruling of Delhi High Court].

Classify the property under Hindu Law.
It may be true that property under Hindu Law can be classified under two heads:- (i) coparcenary property; and (ii) separate property. Coparcenary property is again divisible into (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. [Amit Johri vs Deepak Johri & Ors. (2014), Ruling of Delhi High Court].

Short notes of Joint Property, Joint family property and joint ancestral family property.
It may also be true that the three notions: (i) joint property, (ii) joint family property, and (iii) joint ancestral family property are not the same. In all the three things there is no doubt a common subject, property, but this is qualified in three different ways. The joint property of the English law is property held by two or more person jointly, it characteristic is survivor-ship. Analogies drawn from it to joint family property are false or likely to be false for various reasons. The essential qualification of the second class mentioned above is not joints merely, but a good deal more. Two complete strangers may be joint tenants according to English law; but in no conceivable circumstances except by adoption could they constitute a joint Hindu family, or in that capacity, hold property. In the third case, property is qualified in a two-fold manner, that it must be a joint family property and it must also be ancestral. It is obvious that there must have been a nucleus of joint family property before an ancestral joint family property can come into existence, because the word ancestral connotes descent and hence pre- existence. But because it is true that there can be no joint ancestral family property without pre-existing nucleus of joint family property, it is not correct to say that these cannot be joint family property without a pre- existing nucleus, for, that would be identifying joint family property with ancestral joint family property. Where there is ancestral joint family property, every members of the family acquires in it a right by birth which cannot be defeated by individual alienation or disposition of any kind except under certain peculiar circumstances. This is equally true of joint family property. Where a sufficient nucleus in the possession of the members joint family has come to them from a paternal ancestor, the presumption is that the whole property is ancestral and any members alleging that it is not, will have to prove his self-acquisition. Where property is admitted or proved to have been joint family property, it is subject to exactly the same legal incidents as the ancestral joint family property, but differed radically in original and essential characteristics from the joint family is the tie of sapindaship without which it is impossible to have a joint Hindu family, which such a relationship is unnecessary in the case of a joint tenancy in English laws. [Amit Johri vs Deepak Johri & Ors. (2014), Ruling of Delhi High Court].

Write short notes on ‘Joint Hindu family’ and ”Hindu copercenary”.
In Mulla’s Hindu Law (17th Edn) Article 212(2), 213, it is stated :
“‘ 212. Joint Hindu family:– The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint. Where there is joint estates, and the members of the family become separate in estate, the family ceases to be joint. Mere severance in food and worship does not operate as a separation. Possession of joint family property is not a necessary requisite for the constitution of a joint Hindu family. Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family.”

213. Hindu coparcenary :- A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent. See ‘ 217. The above propositions must be read in the light of what has been stated in the note at the top of this chapter. To understand the formation of a coparcenary, it is important to note the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property.[U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising out of SLP (C) No. 11785 OF 2007) Supreme Court of India ruling.]

It has been so held by the Hon’ble Supreme Court in Bhagwan Dayal (since deceased) and thereafter his heirs and legal representatives Bansgopal Dubey & Anr. V. Mst. Reoti Devi (deceased) and after her death, Mst. Dayavati, her daughter [AIR 1962 SC 287] in the following terms :
“16. The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter remain united; whether the latter remain united or not must be decided on the facts of each case. To these it may be added that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time.” [See also Bhagwati Prasad v. Shri Chandramaul [(1966) 2 SCR 286].

Ancestral property and several joint owners.
The law in this behalf is clearly stated in Mayne’s Hindu Law and usage Twelth Edition at page 295 as follows:-
“Where ancestral property has been divided between several joint owners, there can be no doubt that if any of them have male issue living at the time of the partition, the share which falls to him will continue to be ancestral property in his hands, as regards his male issue, for their rights had already attached upon it, and the partition only cuts off the claims of the dividing members. The father and his male issue still remain joint. The same rule would apply even where the partition had been made before the birth of the male issue or before a son is adopted, for the share which is taken at a partition, by one of the coparceners is taken by him as representing his branch.” [K.Ramananda Mallaya vs K.Anasuya Bai, AS.No. 172 of 1995(C), Kerala High Court.].

Coparcenary property, joint family property and ancestral property:
Hindu coparcenary is a much narrower body than a joint family. The coparcenary includes only those persons who acquire by birth, an interest in the coparcenary property. They are the sons, grandsons and great grandsons of the holder of the joint property for the time being. A property inherited by a Hindu from his father, father’s father or father’s father’s father is ancestral property. [K.Ramananda Mallaya vs K.Anasuya Bai, AS.No. 172 of 1995(C), Kerala High Court.].

At the same time property inherited by him from other relations are his separate properties. The essential feature of the ancestral property is that, if the person inheriting the ancestral property has sons, grandsons or great grandsons, they become joint owner’s or coparcenars along with him. They are entitled to the said right due to their birth. If a son is born subsequently or a grandson or a great grandson is born thereafter, the said son, or grandson or great grandson also became entitled to an equal right by their birth and all of them constitute the coparcenary. Similarly if the father acquires his own property or inherits property from other source which are not ancestral properties, the other members of the coparcenary family cannot claim any right in that property. On his death the said property would devolve on his legal heirs. But it is not by survivorship but by succession. At the same time when the self acquired property of the father is devolved on his son or sons who are members of the coparcenary, it becomes the coparcenary property. In that event it could be claimed by his sons, son’s sons and great grandsons due to their birth. If that be so it cannot be claimed by the son who inherited it that he alone has right over the property or that is his separate property.
Prior to the coming into force of Hindu Succession Act, 1956, if A who had a son B inherited property from his father it became ancestral property in his hands and B became a coparcenar with his father. On the other hand if it was the separate property of A, he has absolute right over the property and it cannot be claimed by his son during his life time. But on his death his right passes on to the son, though not by survivorship but by succession. Thus even if A inherited the property from his brother and thereby it was his separate property where he had independent absolute right of disposal and the son did not acquire any right by birth, and on his death that property descends to a male issue, then it becomes ancestral property in the hands of the male issue who inherited it. Thus if A who owned separate or self acquired property died, on his death it passes on to the son B as his heir and if B had a son C, C has an interest in that property by reason of his birth and he becomes a coparcenar in respect of the said property with his father B. At the same time, if the father died after coming into force of Hindu Succession Act, 1956, then the inheritance of the property of the father could only be as provided under section 8 of the Hindu Succession Act, 1956. [K.Ramananda Mallaya vs K.Anasuya Bai, AS.No. 172 of 1995(C), Kerala High Court.].

—x—