What makes a propery as an HUF or ancestral property?
Venkat
(Querist) 13 December 2010
This query is : Resolved
Hi,
Family history:
The grandfather (GF) has two daughters. The GF' elder daughter, including her husband and her only daughter, stayed with the GF until her daugher finished studies and got job. After that the GF's elder daughter, on her own intentions, wanted to stay seperate from GF and the GF constructed a house, bearing all the construction costs, for her to stay. Since then the GF's elder daughter with her husband staying in that house. After the GF's elder daughter moved out, the GF's younger daughter, who was staying with her husband, moved in, along with her husband, to stay with GF. The GF's younger daughter's two sons were staying with the GF since their birth, even when the GF's elder daughter was with GF.
Property history:
Untill they seperated from GF, the elder daugher and her husband were doing labor on the property pool that GF has. The younger daughter and her husband, since their marriage, were doing labor on the property pool that GF has. Following is the descripttion of the property pool and how the GF has got it.
1) some part of the pool through partition of GF's father's property. This partition happened while the GF's daughters were kids.
2) some part of the pool was bought by GF using the money earned by him and his wife's combined labor. This purchase happened before both of the GF's daughters got married.
3) and again, some other part of the pool was bought by GF. This happened during very early years (say 5 to 7 years) after both of the GF's daughters got married. During this time, the GF and hi wife, the GF's daughter and her husband, the GF's younger daughter and her husband were working together on the property pool that the GF has.
All the property mentioned above is on the GF's name in records.
Questions:
Please advice me on these.
The GF made a registered gift settlement deed in favour of the two sons of his younger daughter for the entire property mentioned above.
1) Is the deed legal considering the history of the property pool?
2) Can the GF's elder daughter and/or her descendents challenge the gift deed? FYI, the GF's elder daughter has only one daughter who is having two male childs.
3) If they can challenge the deed, under what grounds it could be?
4) Is any part of the above said property will be considered as HUF or ancestral property by the law or court?
Note: The GF and his wife are still alive, if this information helps you in advicing me.
Thank you very much in advance for your help.
And the said property is in Andhra Pradesh and all the property was acquired/bought by the GF before 1985.
R.Ramachandran
(Expert) 13 December 2010
Dear Mr. Venkat,
From your above post, following facts emerge:
(1) Your grand father and grand mother are alive.
(2) Your grand father has 2 daughters - both of them are married.
(3) Your grand father has both ancestral property (received from his father etc.) and self-acquired property.
Questions:
(1) Whether the grand father can gift the entire property (both ancestral and those self-acquired by him) to anybody (it can be grand son, grand daughter or a complete stranger)?
THE GRAND FATHER CAN ONLY 'GIFT' THOSE PROPERTIES WHICH ARE HIS SELF-ACQUIRED PROPERTIES. NO BODY CAN CHALLENGE HIS DECISION IN THIS REGARD.
As regards the Ancestral Properties, both his daughters (whether married or unmarried) are co-parcenars with him. The daughters are entitled to equal share in the property. In other words, if the daughters demand partition, your Grand Father cannot reject it. He is bound to partition the ancestral properties. As and when the partition of the Ancestral Property takes place the same shall be divided into three equal shares of 1/3rd each.
After such a partition, the 1/3rd property falling to the share of the Grand father can be given away by him in 'GIFT' to any one that he chooses. NOBODY CAN OBJECT TO THE SAME. Having said this, the following legal position also has to be kept in mind:
“It is the legal obligation of the husband (grandfather) to maintain his wife (grandmother). She (grandmother) is entitled to enforce this personal obligation by creating a charge on his property either acquired or ancestral. She is therefore entitled to be maintained out of profits of her husband’s property. She can enforce her rights against the properties in the hands of the alienee (in this case Donee i.e. to whom the property is gifted) with notice of her claim.
In conclusion answer to your query are as under:
1. Your grand father has no right to GIFT the ancestral property to anybody. The daughters (married / unmarried) of your grand father have every right to demand their share in the ancestral property and your grand father is bound to partition the properties in equally. Your grandfather and his two daughters will get 1/3rd share each.
2. Your grand father can gift his 1/3rd share in the ancestral property to anybody – BUT after making sufficient provision for the maintenance of his wife (your grandmother).
3. Your grand father can gift his self-acquired property to anyone – nobody can object.
Venkat
(Querist) 13 December 2010
Mr. Ramachadran, thanks for your reply.
I have put the property pool into 3 categories. Please clarify what classification (self acquired or ancestral) each category falls into.
And for your reply on gifting the ancestral property, the ancestral property is the GF's share what he got after the partitioning among his brothers. The great grand-father has no other legal heirs except the GF and his 2 brothers.
Also I have read that once partitioned or inherited, the share a legal heir gets through partitioning of ancestral property becomes his/her self acquired property. Please confirm your stand on this.
R.Ramachandran
(Expert) 13 December 2010
There are only 2 classes of properties. (1) Ancestral and (2) self acquired i.e. item 2 and 3 of your query.
I take it that the daughters of your grand father got married after 5.9.1985 (when the HS (AP) Amendment Act, 1986 came into force granting equal share for daughters in ancestral property.
I also take it that your grand father made the gift deed after 9.9.2005 (when the HSA Amendment Act, 2005) came into effect.
In the above scenario, whatever property that your grand father got by way of partition will in fact acquire the character of 'ancestral property' and his daughters have right to claim equal share in it.
Venkat
(Querist) 13 December 2010
Mr. Ramachandran, thanks for your help.
So both the items 2 and 3 will be part of self acquired property of GF irrespective of whether GF's daughters' efforts are also utilized or not in acquiring that property and whether that effort is significant or small. Am I right? Note that this property is on the name of GF as per all legal records.
The two daughters got married before 1980. For the matter of fact at least before the HSA (AP) Amendment Act in 1986 but they were staying with the GF as mentioned in my original post. In this case, is the GF has right to dispose the 1/3 ancestral property as per his wish without the consent of his daughters?
R.Ramachandran
(Expert) 13 December 2010
First your GF has to partition the property between him and his two daughters.
Thereafter, he can do what he want to with his share.
You should keep in ming the the following legal position also:
“It is the legal obligation of the husband (grandfather) to maintain his wife (grandmother). She (grandmother) is entitled to enforce this personal obligation by creating a charge on his property either acquired or ancestral. She is therefore entitled to be maintained out of profits of her husband’s property. She can enforce her rights against the properties in the hands of the alienee (in this case Donee i.e. to whom the property is gifted) with notice of her claim.
Venkat
(Querist) 14 December 2010
Thanks Mr. Ramachandran for your prompt replies.
I understand your stand on equal share for daughters in ancestral property since the will/gift deed was made after HSA amendments (1986 and 2005).
But my question is, will the share of the GF even after partition, which happened before those HSA amendments, still carries the character of ancestral property?
If it becomes ancestral, then no ancestral property can become self acquired even after 100 generations partitioned the same.
The life maintenance of the grandmother was already taken care adequately.
Please respond to my query on classification of the items 2 and 3 of the property pool.
R.Ramachandran
(Expert) 14 December 2010
I have already clearly indicated to you that even though it is a partitioned property which your GF received still it will become ancestral property once he gets a son (now even daughter).
The properties mentioned by you at your original query in item (2) and (3) are his self acquired properties.
The ancestral property which becomes personal property will remain personal property if the person does not get any child. Once a child is born, then the said personal property (received through partition / from ancestors) will become an ancestral property. The cycle will go on.
Venkat
(Querist) 14 December 2010
Thank you sir for your time and valuable suggestions.
Are there any document or act or case references for this whole matter?
Please bear me. I believe, by classifying the item (3) property as self acquired, you meant to say that the two daughters' effort, small/significant or nothing, is immaterial in acquiring item (3) property and their stay with the GF doesn't affect GF's absolute rights in that property.
Venkat
(Querist) 20 December 2010
Sir, R. Ramachandran, please confirm your stand on ancestral property becoming self property after partition.
You are contradicting your above statements here http://www.lawyersclubindia.com/experts/impect-Amendement-2005-on-section-14-of-Hindu-sucsession-Act-1956--138211.asp
where you said
"Son of the female coparcenar, who got her share in the ancestral property, cannot claim any share from the same when she is alive. Even after her death, the said property would go by way of inheritance by her legal heirs, in case she has not disposed of the property by any testamentary disposition. During her life time, the said property is the absolute private property of the female concerned and she can do anything as she likes with it."
R.Ramachandran
(Expert) 20 December 2010
Dear Mr. Venkat,
There is no contradiction in my view.
Please mention, which part of my latest view, according to you, is contradicting which specific point of my earlier view.
Venkat
(Querist) 21 December 2010
On this thread, you said to me that an ancestral property, even after partition, will be an ancestral property forever as long as lineage is there i.e. a child is born to the person getting the share through partition and the children can demand for their share even while that person is alive.
But in the thread I have mentioned above, you said the ancestral property will become the absolute property of the woman and her son cannot demand his share while she is alive.
I know that the HSA and it's amendments are to bring the gender equality. If so, how it could be different in my case and in the other thread I have mentioned above?
R.Ramachandran
(Expert) 21 December 2010
Dear Mr. Venkat,
In your case the ancestral property was in the hands of your grand father and as such I said that the moment he got a son/daughter, it would continue to be an ancestral property, despite the fact that he might have got the ancestral property by way of partition.
Let me further clarify, any share that a female would get (in this case the daughters of your grand father) by way of partition of ancestral property, it would be her personal property (even though she may get a son or daughter out of her wedlock) and she can dispose it off in any manner that she likes. It looses the ancestral character in her hands. But if a son gets such a share from the partition, it would become ancestral the moment the son gets his child either son/daughter because such a sun/daughter would be coparcenars and would have right over such a property, because of their birth in the family.
In the latest case, the ancestral property fell to the share of the lady in question. That is why I said that it is no more ancestral in her hands.
I think now you will understand that there is no conflict in my opinion. Just the facts are different and so the opinion is also correspondingly different.
Venkat
(Querist) 21 December 2010
Thank you sir for enlightening me.
So that's the kind of *gender equality* we have to live with now on. Good -- My hearty welcome to the other side of the coin i.e. the women led era of Kaliyuga.
In the name of equality we give more than what the situation needs without thinking about the complications in future.
Venkat
(Querist) 29 December 2010
Sir, Ramachandran, what is your take on the following in HSA 1956.
"In the case of a Hindu male governed by Mitakshara under s.8 of the Act, the property
that devolves on him will be his separate property. Such a property would never amount to join family property in his hands as against his son.-Yudhishtir v. Ashok Kumar AIR 1987 SC 558"
