Frequently Asked Questions On Ancestral Property

QUERY #1

I have the share of an ancestral agricultural property which I am planning to sell through a power of attorney. I have two children who are minors. Should I include their names in the power of attorney I am giving to my friend? Do they have a claim towards this property?

ANSWER:

The short answer to your question is YES. You may sell the property without their consent.

First, it must be determined whether the property in question actually falls under the ambit of ancestral property or not. Ancestral property is defined under the Hindu Succession Act of 1956, as any property that has been passed on for four generations by male ancestors. The property must not be partitioned, sold, or divided during this time, as doing so will result in it losing its status as an ancestral property. This means that four generations of successors also have a right towards this property. This right of the successors is awarded to them by birth and therefore no co-owner of the property can sell it without obtaining express consent from its coparceners.

Therefore, if the property has already been partitioned and you have received the title to your share, then it is no longer considered as an ancestral property, and is instead a self acquired property in the eyes of law. Therefore, after determining the status of your property, you can proceed with the process of selling your shares. It is advisable to first partition your property by filing a partition suit in a civil court. The Court will, after checking your right of claim towards this property, divide the property equally between all the coparceners. Once the property is partitioned, it has lost its status as an ancestral property. This means that the said property will be treated as a self acquired property whose title and ownership is under your name. The owner of a self acquired property is free to sell it without obtaining consent from his legal heirs. It must be noted that a partition suit must be filed within twelve years from the day of the claim over the property, as prescribed under the Limitation Act, 1963.

I hope this helps. Thank you for your time and patience!

QUERY #2

My grandfather had a property which was divided amongst his children after his demise. Each child got a registered sale deed in their name for their share of the property. When my father tried to sell his share now, he was met with an "Objection to Sell" in the registrar's office, filed by one of his siblings. They claim that this property is ancestral and cannot be sold.

Is this true? Can the sale of this property be halted?

ANSWER:

The short answer to your question is NO. The sale of this property cannot be halted on the stated grounds.

Ancestral property laws in India are governed by the Hindu Succession Act, 1956. It defines an ancestral property as any property that has been passed on for four generations by male ancestors. The property should not have been partitioned, sold, or otherwise divided in this time, as that would result in it losing its status as an ancestral property.

The coparceners to this property shall, by birth, have a right to claim this property. Therefore, without obtaining consent from the rest of the coparceners, any single coparcener cannot sell this property. Although ancestral property can be sold this way, it will lose its status as an ancestral property.

It has been mentioned in the facts that the property was divided among the children of the deceased after his death, which means that this property has lost its status as an ancestral property. It now classifies as a self acquired property, meaning the owner of said property has complete rights over it, including its sale. Also, since complete ownership exists, no person can raise any objection against the sale of this property. Also, the fact that a sale deed has been registered in the name of each child of the deceased for their share of the property also points to the fact that this property is no longer ancestral.

Therefore, the claim that this property is ancestral and cannot be sold is not maintainable in a court of law.

I hope this helps. Thank you for your time and patience!

QUERY #3

My mother inherited some property from her father who died intestate. She wants to now write a will on this property in favour of her son, excluding us daughters. She claims that although will cannot be written on ancestral property, this restriction does not apply to women and that any property owned by a woman becomes absolutely her own. Is this true? Can I challenge this will?

ANSWER:

The short answer to your question is NO. Such a will cannot be challenged.

Ancestral property laws in India are governed by the Hindu Succession Act, 1956. The definition of an ancestral property as per the same is as follows; any property that has been passed on for four generations by male ancestors, which, during this time, was not divided, partitioned, or sold in any way. If the property is partitioned, sold, or divided during this time, it loses its status as an ancestral property.

The key point to be noted here is that the property must be passed on by male ancestors. This means that ancestral property can exist only from the side of the father, and not from the maternal side.

Another fact that must be noted here, is that your mother inherited this property from her father who died intestate. She did not succeed him, meaning that this property is most probably self acquired and cannot be treated as ancestral. If the property is self acquired, she will have complete ownership over the same and may choose to sell it to whoever she prefers. Her legal heirs cannot raise any objection over this.

Your mother’s argument is also right that it has been mentioned in the Hindu Succession Act, 1956, that any property received by any female, either through inheritance, succession, gift, or any other mode of transaction, shall be treated as absolutely her own property.

Therefore, the property in question is her self acquired property and no objection can be raised if she chooses to include only her son in her will, excluding her daughters.

I hope this helps. Thank you for your time and patience!

QUERY #4

Can one co-sharer sell his share of the ancestral property to his daughter in law for his medical needs?

ANSWER:

The short answer to your query is YES. One co-sharer can sell his land to the extent of his property for his needs.

First, let us understand the definition of an ancestral property. Ancestral property laws are governed by the Hindu Succession Act, 1956. This act defines an ancestral property as any property that has been passed on for four generations by male ancestors. This property should not have been partitioned, sold, or divided during this time as doing so will lead to its loss of status as ancestral property.

The four generations of successors shall be the coparceners to this property, meaning they will have equal rights of claim over this property. Any one coparcener cannot sell this property without obtaining the express consent of all the coparceners of an ancestral property. Therefore, you cannot sell an ancestral property without the consent of all the legal successors of the property.

But you may file a partition suit in a civil court seeking partition of the property so that you may get your share of the property demarcated by the Court. Once this happens, the property will lose its status as an ancestral property and will be considered as a self acquired property from now on. The owner of a self acquired property has complete ownership rights over this property, meaning that the owner may sell the property to anyone he chooses and no legal objection can be raised by anyone on this. A partition suit must be filed within twelve years from the date of claim of the said property as per the Limitation Act, 1963.

I hope this helps. Thank you for your time and patience!