Ancestral of self earned property
Gaurav Kumar
(Querist) 07 March 2012
This query is : Resolved
Sir
My question is whether the property is Ancestral or Self Acquired property of my father :
Details
1.My father had 3 brothers (4 including him) and 4 sisters.
2. He was staying in ancestral house of his father as he had not left any WIll for the house.
3. My father by Relinquishment Deed got the shares of his brothers and sisters in the house he was living except (1 sister who had expired early) in his name by giving money to them amicably but the money given to them has not been mentioned.
4. Recently my father gave one floor in the same house where he is living to his niece/nephew for the 1 share of her sister which he could not get in his name through a registered Partition Deed .
PLEASE I NEED YOUR GUIDANCE REGARDING THE HOUSE WHETHER IT IS STILL ANCESTRAL OR NOW IT IS SELF EARNED AS HE HAS GIVEN 1 FLOOR TO THE CHILDREN OF HER DECEASED SISTER THROUGH PARTITION DEED.
SECONDLY CAN HE GIFT THE REMAINING FLOORS ( 2 IN NUMBER) TO ANYONE HE WANTS TO .
WAITING FOR YOUR REPLY ANXIOUSLY
Deepak Nair
(Expert) 07 March 2012
This is still an ancestral property and he cannot dispose off the same through gift deed to anybody.
Gaurav Kumar
(Querist) 07 March 2012
Sir
Kindly explain how my father can gift the property to me as i have a sister who is married and my father is 80 plus.
Deepak Nair
(Expert) 07 March 2012
You said that the property of your father is his self earned property.
In that case, he can execute a will in your favour.
The other way is to esecute a gift deed. In gift deed, you need to pay stamp duty according to the value of property.
A duly registered WILL is enough to transfer the title after the demise.
Gaurav Kumar
(Querist) 07 March 2012
Sir
i thought it to be his self earned property now as he has given one floor of the house to his niece/nephew against a share of his sister in the house against a registered partition deed for which the stamp duty has been paid.
if it is still an ancestral property how my father can transfer the property to me being his son as i have a sister who is married and well settled in life.
what document do we (father & me) need from his daughter and my sister so that i become the owner of whole property after my father is no more
Raj Kumar Makkad
(Expert) 07 March 2012
Legally 3/4 share of the entire property as on day is his self acquired property whereas remaining 1/4 is his ancestral. The property share received by you father by way of relinquishment deed shall be regarded as his self acquired and his personal share inherited by him from his father shall be regarded as ancestral.
Your sister can claim only in the ancestral share if she desires after the demise of your father if he makes will of the entire property in your favour.
If your sister do not raise any dispute then get a registered will of the entire property and it shall also be better to make your sister as one of the witnesses at the time of execution and registration of the will.
Gaurav Kumar
(Querist) 07 March 2012
Sir
Thank you for your analysis of my case regarding the confusion whether the property is ancestral or self earned property of my father.
Kindly guide me and help me devise a full proof way out so that the remaining property (2 floors) remain with me once my father is no more.
As you have suggested that my father leaves a will with my sister as the witness , sir i have already got a registered will done from my father at the sub registrar office, infact i was thinking of getting the floors gifted from my father in my name after paying the stamp duty as i thought that WIll is challangeable document and Gift Deed is fool proof and conclusive document.
Sir please help me by guiding me as to how i should get my legal papers made so that i can breathe peacefully
thanks
Anirudh
(Expert) 08 March 2012
Dear Mr. Gaurav Kumar,
You gave incomplete facts - yet the experts answered you. Neither you can be sure about the correctness of their answer, nor the experts themselves, since they answered on the basis of such incomplete facts.
According to you, the property was 'ancestral'. What is the basis for saying so is not clear.
You did not reveal how did your grand father got that property?
You did not say when did your grand father die?
Without knowing these two minimum important particulars, no one can proceed to answer your query, leave alone giving an answer.
Gaurav Kumar
(Querist) 08 March 2012
Sir
I would like to give some details as desired by you
1. My basis for saying that the property is ancestral because the property was in the name of my grandfather in the Land & Development Office.
My grandfather had got this property when he migrated to delhi after the 1947 partition against claims as he lived in undivided pakistan before partition.
2.But all the dues my father paid recently before getting the property freehold in his name 7/8 share and 1/8 share in my cousin's name (my bhua share they took one floor) as my grandfather had taken loan from the Govt of India for building the house in the year 1952.
3.My grandfather did not leave any WILL favouring my father for the rights/title of the property .
4. My father paid money to all his brothers and sisters except one sister as she died early for getting Relinquishment Deed in his name.
Sir please help me define whether the said property is ancestral or self earned property.
Sir if you require any other details regarding this property pl ask so
thanks
Anirudh
(Expert) 08 March 2012
Still you do not tell as to when your grand father die.
Gaurav Kumar
(Querist) 08 March 2012
My grandfather expired on 23 october 1964
Anirudh
(Expert) 08 March 2012
From the facts revealed by you, it is the personal property of your grand father.
Since he died without leaving a WILL, the property inherited by your father and his brothers and sisters are 'personal property' in their hands also.
Therefore, the property is not at all 'ancestral' from any angle.
Moral of the story: To get an appropriate answer, better reveal all the facts. You yourself do not decide what facts are necessary and what are not. It is for the answering person to sift and discard what is not necessary. It is quite possible as to what you think as not necessary may turn out to be the most vital information, while what you consider to be most important may prove inconsequential.
Gaurav Kumar
(Querist) 08 March 2012
Sir
If i have offended anybody i am sorry but i just want to be sure again whether the property is Ancestral or Self earned property of my father as i want to that my father to gift it to me by paying the stamp duty if it not ancestral
Waiting anxiously for your valuable advise and conclusion
Gaurav Kumar
(Querist) 08 March 2012
Sir
Can you also give me the reasons for your analysis and judgement that the property is self earned and not Ancestral
Guest
(Expert) 08 March 2012
Status of ancestral property cannot change merely by mode of acquisition by any of the heirs. The same cannot be termed as a self earned property.
Had your father acquired property through his own sources of income only that could have been treated as a self earned property.
Anirudh
(Expert) 08 March 2012
Dear Mr. Dhingra,
Please go through CWT v. Chander Sen AIR 1986 SC 1753. I am sure you will reconsider your views.
Guest
(Expert) 08 March 2012
Dear Anirudh,
Thanks for referring to the judgment. Needless to mention, the judgment, as made by the Commissioner of Wealth Tax (not by any court on civil matters) is mainly on the issue of taxation and rebate in consideration "whether the income or asset which a son inherits from his father when separated by partition should be assessed as income of the Hindu Undivided Family consisting of his own branch including his sons or his individual income." The judgment did not belong to the decision on interpretation about self earned or ancestral property.
The main features of the judgment are reproduced below:
HELD: 1. The sums standing to the credit of Rangi Lal belong to Chander Sen in his individual capacity and not the Joint Hindu Family. The interest of Rs.23,330 was an allowable deduction in respect of the income of the family from the business. [268C-D]
2.1 Under s. 8 of the Hindu Succession Act, 1956, the property of the father who dies intestate devolves on his son in his individual capacity and not as Karta of his own family. Section 8 lays down the scheme of succession to the property of a Hindu dying intestate. The Schedule classified the heirs on whom such property should devolve. Those specified in class I took simultaneously to the exclusion of all other heirs. A son's son was not mentioned as an heir under class I of the Schedule, and, therefore, he could not get any right in the property of his grandfather under the provision. [265F-G]
2.2 The right of a son's son in his grandfather's property during the lifetime of his father which existed under the Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property "ceased to have effect". So construed, s. 8 of the Act should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1356, did not constitute HUF property consisting of his own branch including his sons. [265G-H; 266A-C]
2.3 The Preamble to the Act states that it was an Act to amend and codify the law relating to intestate succession among Hindus. Therefore, it is not possible when the Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased-son, to say that when son inherits the property in the situation contemplated by s. 8, he takes it as Karta of his own undivided family. [267C-D].
THE QUESTION OF THE AUTHOR intends to know interpretation whether the property was "Ancestral or Self Acquired property" as his father inherited from his father who died intestate? In this case his father is still alive and he has not further left the property intestate, while he got the property of his predeceased sister (undulty without any relinquishment), while her son/daughter were eligible to have his/her share due to their mother out of the intestate property and now the father of the querist intends to give his niece/nephew the share of her sister which he acquired without his entitlement, without a relinquishment/registered Partition Deed.
Although the judgment was made by Commissioner of Wealth Tax, you may kindly like to provide your interpretation whether in the light of the aforesaid judgment the status of property changes to "self acquired property" by his father when his father did not spend even a single penny out of his own income, OR would be termed as "ancestral property," which was in his custody without proper partition amongst the legal heirs?
I feel my interpretation about the property, as ancestral property is correct. However, your views, in the light of the above judgment, would surely help me to enhance my knowledge if I was wrong in my interpretation.
Gaurav Kumar
(Querist) 08 March 2012
Sir
Kindly guide me with your Final opinion / analysis regarding my father's property whether it is Ancestral or Self Acquired.
Can i get a Gift Deed in my name from my father by paying the Stamp Duty if it is not Ancestral Property.
Sir Kindly give me a full proof way so that there is no problem from my sister related to this property.
Anirudh
(Expert) 09 March 2012
Dear Mr. Dhingra,
Para 2.2 of the decision is quite bang on the point at issue:
"2.2 The right of a son's son in his grandfather's property during the lifetime of his father which existed under the Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property "ceased to have effect". So construed, s. 8 of the Act should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his own branch including his sons."
And it touches only on the aspect of the character of the property in the context of Hindu Succession Act.
Having applied the provision of HSA in such a manner, the Court goes on to decide the issue falling under the Wealth Tax. In fact the imposition of tax in that case very much depended upon the very character of the property. Therefore, the Court had to first decide the character of the property.
Therefore the said judgment is an authority to say that a property which devolves on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1956 will be regarded as 'separate property' and not HUF or ancestral.
Your point that the father of the querist did not spend even a single penny, but got it only from his father will not make any difference, so long as the property came by way of inheritance to him after HSA 1956. The position would have been completely different, had the querist's grand father had died prior to the coming into force of the HSA. In such an event, the property which the father of the querist would have got is as a coparcenar, and therefore the property would have acquired the character of coparcenary.
That is one of the reasons why to answer the query, one has to know (i) how the property came into the hands of the grand father and (ii) when did the grand father die.
I hope this clarifies the position.
Gaurav Kumar
(Querist) 09 March 2012
Makkad/Anirudh Sir
Kindly confirm whether the discussed property is ancestral or self earned property.
kindly give me the final reasons so that once my father gifts the property to me and my sister challenges it then i should be able to fight my case strongly.
Anirudh
(Expert) 09 March 2012
Dear Mr. Gaurav,
I think you have not properly gone through my earlier answer, which reads as under, and which clearly states that the property is not 'ancestral'.
"From the facts revealed by you, it is the personal property of your grand father.
Since he died without leaving a WILL, the property inherited by your father and his brothers and sisters are 'personal property' in their hands also.
Therefore, the property is not at all 'ancestral' from any angle."
Gaurav Kumar
(Querist) 09 March 2012
Thank you Anirudh Sir
My apologies to everybody who have been a part of this discussion including Mr Dhingra.
Sir now i discuss a situation which may arise maybe after 5 years when my father has gifted me the property on the basis of your valued analysis that the property is self earned property of my father.
If my sister challenges the gift deed of my dad and the lawyer of my sister comes out with the same POINTS as discussed by respected Mr Dhingra who still acknowledges the property to be ANCESTRAL property sir can you please give CONCRETE grounds so that i can prepare myself on your judgement lines and dont feel insecure of any challenges coming in future from my sister.
With all respects Anirudh the questio of my inheriting my fathe's property depends on your Expertised Judgement & Conslusions
regards
Guest
(Expert) 09 March 2012
Dear Anirudh,
I have not stated anywhere that the property after acquisition of due share out of his ancestral property did not become his personal property.
Please recheck the original question, which was not about "personal property," BUT WAS about "ancestral property" or "self earned property". Your present comments also do not touch the point raised in the question.
No doubt, after acquisition of his due share, including that which vested in him on account of relinquishment deeds by other heirs, definitely the property would become personal property of the father of the querist. But, the ownership would not be on account of self earned property, but by acquisition of ancestral property.
You may therefore like to review your answer in view of the above position, as even the case law quoted by you would not change the status of the property as "self earned property."
Guest
(Expert) 09 March 2012
Dear Gaurav,
It totally depends upon your liking or disliking of answers of any of the experts. But, legal position has no scope of change.
Since your earlier query belonged to inheritance of ancestral property by your father, which included a part of property which was not his due share as per Hindu Succession Act, and was the entitlement of her deceased sister or her legal heirs after her death. My discussion was in view of that issue. Your question was also whether the said property was ancestral or self earned property. So far acquisition of the property by your father, that was merely ancestral property, not a self earned property at any time. He would remain sole owner for his due share acquired by that way.
Now your question is quite different by asking about gifting of property to you instead of his niece/nephew that was her/his share by law due to being the legal heirs of his sister. That way you seem to have confused two different issues, (1) gifting his own share to you, and (2) gifting (rather returning) her sister's due share to her legal heirs. So now, if your father want to gift any property, he is free to dispose of his own share (including that acquired through relinquishment deeds) in any manner he likes during his life time.
The question, as assumed by Shri Anirudh, was not about personal property. Your question was about ancestral property or self earned property. I have not stated where that the property after acquisition of due share out of his ancestral property did not become his personal property.
Best of luck.
Anirudh
(Expert) 09 March 2012
Dear Mr. Dhingra,
The term 'personal property', 'self earned property' and 'separate property' are being used as synonymous and in contradistinction to 'ancestral' / 'coparcenary' property.
Therefore, the original question was: a person (father of the querist) inherited the property after the death of his grandfather; the inherited share by other brother(s)/Sister(s) - (except one sister's share) was acquired by his father. Thereafter he gave one floor to his niece - towards the share of his deceased sister from whom he did not obtain NOC.
Therefore the querist wanted to know whether the remaining portion of the house - which will definitely consist of the one inherited by his father, as also acquired by him from his brother(s) / sister(s) - will be ancestral property or personal property.
After obtaining the requisite additional information, I answered saying that the property was not at all 'ancestral' from any angle and it was 'personal property' of the person's concerned throughout. I NEVER USED THE TERM 'SELF-EARNED'. In any case, that will not make any difference in the context, because the main concern of the querist is whether the property is 'ancestral' in any way and whether his father would be in a position to give 'gift' of the said property without any problem.
Obviously, the answer is (i) the property is not 'ancestral'; (ii) it is personal property; (iii) there will be no difficulty if the property is given away by his father in GIFT.
Therefore, my answer will not undergo any change.
Guest
(Expert) 09 March 2012
Dear Anirudh,
Thanks for your response. As regards your statement, "Therefore the querist wanted to know whether the remaining portion of the house - which will definitely consist of the one inherited by his father, as also acquired by him from his brother(s) / sister(s) - will be ancestral property or personal property," I would like to request you just to re-read the part (capital letters' part) of the question of the querist, which reads, as follows:
"PLEASE I NEED YOUR GUIDANCE REGARDING THE HOUSE WHETHER IT IS STILL ANCESTRAL OR NOW IT IS SELF EARNED AS HE HAS GIVEN 1 FLOOR TO THE CHILDREN OF HER DECEASED SISTER THROUGH PARTITION DEED."
The querist has used the term "self earned", not the term "personal," as you used in the aforesaid sentence of yours.
Even in his starting sentence of the question, he stated, "My question is whether the property is Ancestral or Self Acquired property of my father."
Nowhere in the whole of his original question he used the said term of "Personal property."
You may like to appreciate, there lies the cause of difference of interpretations.
Anyway, nothing personal, the querist is quite free to act upon any one's advice.
Gaurav Kumar
(Querist) 09 March 2012
Sir
My apologies again to everybody whom i have offended but it was not intentional.
I would like to clarify that Anirudh Sir has rightly understood my questions and i am sure that his views are correct and fruitful for me as it goes in my favour.
Now Dhingra sir i agree to your interpretation of my question that i had asked whether it is ancestral or self earned sir i am not a person who understands or has read law.
Sir i was confused and under lot of pressure as people were scaring me that my father cannot gift me the whole house remaining with him after giving one floor to his nice/nephew.
Sir now i would correct my question as i have gone through all the discussion on this portal and my question again is in CAPS
Is my father's property still ancestral or his Personal property (meaning that can he gift it to me if it is his Personal property and not ancestral property).
Dhingra sir please do not mis interpret me coz i aligned myself with Anirudh sir's comments as they were favourable to me, sir i am very tensed and lots of anxiety is there in me therefore when Anirudh sir gave his views in favour of self earned/personal property there was a ray of hope for me that my father can gift his remaining share to me without any fear of any challenge coming to me from my sister after my father is no more
My apologies to eveybody once again and all my queries were towards one clarifiation whether this property in dicussion is no more an ANCESTRAL property and is Self earned/personal property so that it can be gifted to me completely
Guest
(Expert) 09 March 2012
Dear Gaurav,
It is great on your part in wasting precious time of all the experts on your own misconceived and misleading question and ameding the same only after 27 discussions that included very long ones also. You could well have put a very simple question by stating the facts very clearly, which you have stated now thereby keeping the experts in guessing position on account of your misleading question.
Anyway, it is fine if your purpose is solved with such discussions.
Gaurav Kumar
(Querist) 09 March 2012
MY APOLOGIES TO EVERYBODY & THANK YOU eVERyBODy ESPECIALLY ANIRUDH SIR & DHINGRA SIR.
Gaurav Kumar
(Querist) 10 March 2012
Sir
I have inquired about the Gift Deed but the rates and stamp duty are very high.
can you suggest me some other way than gift deed to safeguard the property in my name from my sister.
