Ancestral Property Partition and Family Rights


November 30, 2019
By Advocate Chikirsha Mohanty



Numerous portrayals of family disputes over a property in movies and novels have proved only one point that ever since the beginning of time a property has been a mark of high economic status due to which it has been a matter for dispute amongst kin. Property disputes among families are a common occurrence in India these days. Legal disputes over property take place across people at different levels in the society, be it households with low income or wealthy families and most of these disputes relate to ancestral property.

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What is an Ancestral Property?

Ancestral property is a property inherited up to three generations in a Hindu Undivided Family (HUF). In other words, it is a property that descends from father, grandfather, and great grandfather. Before 2005, only male members of the family had a right to inherit the ancestral property, however, the 2005 amendment to the Hindu Succession Act gave equal inheritance rights to the women as well.
 

What is the procedure for partition of an Ancestral Property?

Partition of ancestral property is when two or more members of a family claiming rights over the property want to gain ownership of their share in the property separately. The partition of property amongst family members can then take place which may be either contested (without mutual consent) by filing a partition suit or uncontested through partition deed or family settlement.

In case the partition is contested, the family members can file a partition suit. A suit for partition is essentially filed when all the legal heirs are not in agreement in respect of the terms and conditions of the division of property. Whereas, if the division of property is being done with mutual agreement, one can enter into a partition deed or a family settlement. The members of a family having right over a particular property can execute a partition deed to distribute a jointly owned property among the co-owners. A family settlement can also be executed by the co-owners of the joint family property where the intention is to divide the property amongst the co-owners mutually, without any legal dispute.
 

Rights of Daughters or Granddaughters in Father’s or Grandfather’s Ancestral Property

The dependability of women for finance over the years, be it on father, brother or husband, has been at the root of much hardship for women. This is why the amendment to the Hindu Succession Act in the year 2005 was made to bring the daughters at par with sons with regards to property inheritance rights.

Under Hindu law, the property is divided into an ancestral and self-acquired property. Ancestral property is defined as one that is inherited up to four generations of male lineage and should have stayed undivided throughout this period. Whereas, a self-acquired property refers to a property that has been bought by the father with his own money.

In the case of an inherited property, an equal share accrues by birth itself, be it a daughter or a granddaughter. Thus, the father or the grandfather cannot Will such property to anyone he wants to, or deprive a daughter or a granddaughter of her share in it. However, in case of self-acquired property, the father has a right to gift the property or will it to anyone he wants, and the daughter will not have a right to raise an objection.

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Ancestral Property- Rights to Married Daughters

Before the 2005 amendment, once a daughter was married, she ceased to be a part of her father’s Hindu Undivided Family (HUF). However, the amendment stated that every daughter, whether married or unmarried, is considered a member of her father’s HUF and can even be appointed as ‘Karta’ of the HUF, thus, granting daughters equal rights, duties and liabilities in matters related to inheritance as were earlier limited to sons.
 

Wife’s Rights to inherit Husband’s Ancestral Property

As per the Hindu law, a Hindu wife does not have inheritance rights in her husband’s ancestral property. However, a wife can have her husband’s share in the ancestral property after his death. This is when the husband has died before the partition of his ancestral property has taken place. Moreover, in case a husband dies after taking his share of the ancestral property, such property will be divided between the wife or wives and the children of the deceased equally.
 

Daughter-in-Law’s Rights in Father-in-Law’s Property

As stated above, a wife only has legal rights to inherit the property owned or inherited by her husband and not in the ancestral property of her husband. Therefore, a daughter-in-law does not have any inheritance rights in the property bought or inherited by her father-in-law.
 

Rights of a Son in the Ancestral Property

A right to inherit the ancestral property accrues to a son by the time of his birth. A son is the joint owner of ancestral property and has the right to file a partition suit for his rightful share in the property. He has a right to ask for his share in the ancestral property during the lifetime of his father or grandfather or great grandfather, whoever is the ‘Karta’. He also has the right to sell his share to any third person before a formal partition of the property has taken place.

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How can a lawyer help you in family partition?

Sometimes the law and the legal framework can get confusing and difficult to understand, especially when the issue is regarding a dispute related to family property. In such a scenario, one may not realize how to determine the legal issue, the area to which the issue relates to, whether the issue requires going to court and, how the court procedure works. Seeing a lawyer and getting some legal advice can enable you to comprehend your choices and can give you the certainty to enable you to determine your legal recourse.

An experienced attorney can give you expert advice on how to handle your property issue owing to his years of experience in handling such cases. A property lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney you can ensure avoiding delay and can get your share in the property as quickly as possible.



 

These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.


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