a) Hindu Undivided Family: Hindu undivided family
b) Karta: Head of the Hindi undivided family
c) Coparcener: who has legal rights for inheriting property
d) Coparcenary property: Ancestral property as per the Hindu Succession Act is a coparcenary property.
History Of Inheritance Laws For Ancestral And Self-Acquired Property In India
Prior to the implementation of the Hindu Succession Act, 1956 and the Amendment of 2005, the son had exclusive rights over his father’s property, whereas the daughter had negligible right over the ancestral property, and as soon as the daughter was wedded, she was terminated to have any rights over the father’s property. After the amendment of 2005, the daughters were also given equal rights and liability in the property. The amendment also states that when a daughter is born to a coparcener, she has the right from birth as a coparcener. The property owned by the Hindu female is to be held by her as her absolute property.
Property can be divided into two categories;
- Ancestral property
- Self-acquired property.
An ancestral property is a property that has been inherited for up to three generations. On the other hand, as the name suggests self-acquired property is one that is bought from a person with his own hard money.
An ancestral property is a property belonging to one’s forefathers and passed on through the generations. This type of property, both carries sentimental value and monetary value. The Supreme Court held that the right of this type of property is inherited right from the birth of the person. The apex court also stated that a property which is undivided, within a family for over four generations of male lineage. The court also claimed that the property inherited by the grandmother, mother, uncle or even a brother, does not come under the ancestral property.
Elements Of An Ancestral Property
- Property should be undivided
- Property inherited up to four generations of male lineage
When A Property Ceased To Be An Ancestral Property:
- When a share or portion of the ancestral property is divided amongst the coparceners, it loses it character and becomes his/hers self-acquired property.
- Properties inherited from grandmother, mother, uncle and brother are not ancestral property.
- Property in inherited through will and gift are not ancestral properties.
- Property gifted by a father to his son cannot become ancestral property in the hands of the son simply by reason of the fact that he got it from his father.
Son’s Right On Ancestral Property:
A son or sons has absolute right over the ancestral property right from birth. A son or sons can file for a partition suit for his own share.
Daughter’s Right On Ancestral Property:
After the amendment of 2005, a daughter has the same rights as that of the son, she is a coparcenary and has rights over the ancestral property right from her birth.
A property that is neither a joint family or a coparcenary property and is one that has been acquired from one’s own income. It also includes property that has been acquired through will and gift. A self-acquired property does not give off-springs the right from the birth of the property. This type of property can be sold and transferred to anyone when the owner wants. Property acquired from a mother, uncle, brother or grandmother also comes under self-acquired property.
Elements Of Self-Acquired Property:
- Property transferred through will or gift
- Property acquired from one’s own income
- Property acquired from maternal family.
Son’s Right On Self-Acquired Property:
The father has the right to gift the property, or by way of will transfer the property to anyone irrespective of his own son. If a will has been executed, the other offsprings have no right to object to the same. Will or gift of the property can be to anyone, provided not done under undue influence, fraud, misrepresentation or coercion.
Daughter’s Rights On Self-Acquired Property:
Similar to the son’s right over self-acquired property, a father can transfer his self-acquired property to his daughter without any objections from any of the offspring. Will or gift of the property can be to anyone, provided not done under undue influence, fraud, misrepresentation or coercion.
A son/daughter can be disinherited from the self-acquired property of the father, but they will still have equal rights over the ancestral or the coparcenary property of the Hindu undivided family.
Child Born Out Of Live-In Relationship:
SC in, Kattukandi Edathil Krishnan & Anr vs Kattukandi Edathil Valsan &Ors. held that a son born out of live-in can also claim his father’s ancestral property, has the same rights and liability as that of a legitimate son.
Hindu Succession Act 2005 Amendment
- In a Hindu Undivided Family, the daughter shall have a coparcener right, by birth, similar to that of a son.
- mother or any female that becomes part of the HUF shall not be a coparcenary to the family.
- The daughter shall be directed to the same responsibility in respect of the said coparcenary property as that of a son. This includes the right to ask for partition of the property and to become a Karta of the Hindu Undivided Family.
- The daughter when married cease to be a member of the Hindu Undivided Family but continued to be a coparcener. Thus, she is entitled to ask for partition of the property, as well as to become a Karta of the family if she was the eldest coparcener of her father’s HUF.
- Even in the case of a married daughter who has died, her children would be entitled to the shares that she would have received if she were alive on the day of partition.
- The daughter has fully capable of giving away her share in the HUF property by way of a will.
- Any property for which a female Hindu is nominated shall be handled by her with conflicts of coparcenary control and cannot be settled by her by will.
Can an ancestral property be transferred to anyone, other than family members?
Father’s ancestral property is the birth right of his children. Hence, the father cannot gift/will transfer the property to anyone.
Can self-acquired property be transferred to anyone, other than his own family members?
In a self-acquired property, the father has the right to gift the property or will it to anyone he wishes and the children do not have any right in objecting the same. However, after the death of the father, if the father dies without a will, the self-acquired property is equally distributed amongst his legal heir. But the father has made a will without undue influence, the property goes to the person or persons named in the will.
What happens to the property when the children die before their father?
When the children die before the father, their share is assigned to the pre-deceased son or the surviving child of such a pre-deceased daughter.
Joint Family Property Which Is Not Ancestral Property:
This type of property is acquired with the help of ancestral property and property acquired by the individual coparcener without such aid but treated by them as property of the whole family.
Can Ancestral Property Be Sold?
The ancestral property can be sold only when all the coparcener agrees to sell the property. If anyone of the coparcener disagrees, then the property can not be sold.
Women have suffered discrimination throughout their life, but with the introduction of the amendment of 2005, daughters have equal rights as their sons and can acquire the ancestral property left by their forefathers as well. Daughters now can be coparceners and have equal rights as that sons.