Rights of son in Ancestral Property

हिंदी में पढ़ें
November 20, 2019
By Advocate Chikirsha Mohanty



Ever since the beginning of time, sons in India are considered the ones to take the family name ahead. The traditional social set up also focuses on sons being the main breadwinner of the family as a son is expected to earn and take care of their parents in old age. This is why in matters related to succession of ancestral property, a son is given greater rights and liabilities since the very inception including right in ancestral property by birth; a right to survivorship i.e. the right to divide the share among rest if one of the coparceners dies along with the right to sell their share of the property to anyone they want and so on.

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What is Ancestral Property?

The term ancestral property refers to property that has been inherited up to four generations of male lineage. Thus, a property inherited by an ancestor from any of his paternal ancestors up to three generations above him, would be regarded as a part of the ancestral property for his legal heirs up to three generations below him.  However, an ancestral property no longer remains ancestral once it has been divided or partitioned by any of the previous three generations. Upon division or partition, the property becomes the self-acquired property of members of the generation that obtained a share upon its partition.
 

Ancestral Property vs. Self-Acquired Property

The rights available to a son to the self-acquired property are very different to that with respect to ancestral property. Therefore, to understand the rights of a son, it is important to figure out whether a property is ancestral or self-acquired. As explained above, the ancestral property is one which is inherited up to four generations of male lineage.

On the other hand, self-acquired property is one which has been purchased by a person from his own funds or acquired without the help of family funds through his own efforts. This also includes the share of a property acquired through a division/partition of the ancestral property.

Thus, the essential ingredients for a property to be regarded as ancestral is uninterrupted inheritance over four generations.

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Rights of a Son in Ancestral Property and Self Acquired Property

Under the Hindu Succession Law, sons and daughters have been given the first right in the property if the father dies intestate (without leaving a will). In furtherance to this, they also have the right to acquire their legal share in the property. However, these rights in the property depends upon the property being ancestral or self-acquired.

When the property is Ancestral
Be it a daughter or a son, a right in the father’s ancestral property accrues by birth itself. Thus, as per the law, a father cannot Will such property to anyone he wishes to, or deprive a son of his share in it. A son has a right to inherit such property by the time of his birth itself.

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’. Moreover, he has the right to sell his share to any third person before a formal partition of the property has taken place.

When the property is not Ancestral
In the case of a non-ancestral or a self-acquired property, the father has a right to gift the property or will it to anyone he wants, and the son will not have a right to raise an objection. However, after the death of the father, on a will left by him transferring the property or a share in such property to the son only can give any right to the son in such property. Also, if the father dies without leaving a will then the son and the daughter can claim an equal share in the self-acquired property.

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Gifted property from Father to Son is not Ancestral

Property is not considered as an ancestral or family property in the event that it was gifted by a father to his son. In this manner, an individual cannot guarantee his share in a property that was gifted to his father by his grandfather. This is why a property that a son or a daughter receives as a gift from the father is considered as their self-acquired property. In such cases, the grandchildren have no lawful right in property their grandfather gifted to his son or daughter as he could have gifted the same to any third person as well. Such a property is considered as the self-acquired property except if there is an unmistakable expression of intention by the grandfather to make it an ancestral property.
 

Why do you need a Lawyer?

The intricate process of understanding succession laws and to figure out your exact share in your family’s ancestral property is a complex procedure which requires the services of a trained legal expert. Therefore, it is advised to engage the expertise of a lawyer who can guide you through the process and ensure your rights are protected at every stage. Hiring a lawyer can save you from a lot of hassle in the long run and ensure that you and your family reach a favourable outcome which reduces the risk of any litigation or friction in the future. This in turn helps save a lot of time, effort and money for you and your family.



 

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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