Can i claim ancestral property from grand father? Can he sell it?
My grandfather had aquired an ancestral property and recently my father passed away. I would like to know can I claim the ancestral property or can my grandfather sell it or transfer it or give by Will?
A pre-requisite condition required for a property to be Ancestral property is that it should be owned by the great grand father followed by grand father, father & present generation all in this linear generation living & enjoying the property. The property should not have ever partitioned & share in it distributed to any of the Hindu Coparceners as in any linear generation as mentioned above, in other words, it should be intact single property which is being used jointly by all members of the Hindu Joint family.
Therefore, all property inherited by a male Hindu from his father, fathers father, or father's father's father, is ancestral property.
The essential feature of inheritance of ancestral property according to the Mitakshara law under Hindu Succession Act is that man inherits from any of his three immediate paternal ancestors, namely, his father, fathers father and fathers fathers father is ancestral property as regards his male issue, and his son acquires jointly with him an interest in it by birth. Their rights attach to it at the moment of their birth. Also, under the Hindu Succession Act the sons, along with other intestate heirs indicated in Class I of the Schedule.
Therefore, if your property falls within such ambit then you are entitled for the share in your Grandfather’s property. Furthermore, in view of above mentioned, the basic proposition is that the grandson acquires a right in the property of his grandfather at his birth and has a right of inheritance jointly with his father at the time of succession. Hence, you will be entitled for the share in the property.
In view of aforesaid, you can at anytime seek a partition of your and father’s share. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a Court, a preliminary decree is passed determining shares of the members of the family.
The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition.
Furthermore, your grandfather can also transfer your share by Will. However, this transfer will become operative after his death.
With respect to selling of property, the power of the Karta to make an alienation is confined according to the Mitakshara to three purposes:
(1) in the time of distress (apatkale)
(2) for the sake or benefit of the family (kutumbarthe)
(3) for pious purposes (dharmarthe).
The meaning of the terms is explained by the Mitakshara : “Time of distress” refers to a distress which affects the whole family; ‘for the sake of the family’ means for its maintenance; and ‘pious purposes’ are described as indispensable acts of duty such as the obsequies of the ancestors”.
Thus, it has long been, settled that the managing member of a joint Hindu family has power to alienate for value, joint family property either for family necessity or for the benefit of the estate so as to bind the interests of all the undivided members of the family whether they are adults or minors or widows. (Please refer Mahadu vs. Gajara Bai 1954 Bombay 442 (DB).
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