Repost - definition of ancestral and self acquired property.
Azhar
(Querist) 02 February 2012
This query is : Resolved
Gents, Sorry for re posting. My earlier query was posted as anonymous and I now understand that anonymous queries will not be answered. Hence I am re posting. My apologies in advance. Another note to add at this stage is - i am not underestimating any of the experts knowledge of advice in the forum, who are doing a wonderful job. But just to reaffirm my situation I am asking this.
Difference between Ancestral & Self Acquired
Ancestral Property
In simple words, what i understand is that, a property say 2 acres, held by a joint family should be transferred atleast to 4 generation without any partitions in between, to be treated as ancestral. ie. 1 gen has 2 acres and the 4 gen also will have 2 acres.
If in case the 2 acre is partitioned among brothers of Generation 2, then it becomes the self accquired property of the brothers!
Q1. Is my understanding on self acquired property correct. Does the same applies to Hindu (Caste Thiyya) in Kerala.
Section 2 (this is also re post. apologies)
Property belong to Thiyya in Kerala.
We purchased a property from Mr. X in 2000. Mr. X is still alive. Mr. X got this property through partition after Mr. X's fathers death. The partition occured in 1994 and in the partition deed Mr. X, His brother & His sister are included.
Let us call X's father Y. Y got the property through partition after Y's fathers death. Partition was done in 1964.
Y got from his father in 1936 after his fathers death, again thru partition, All these people belong to Hindu Thiyya caste.
Now Mr. X has a son who is claiming that he has 50% share on the property which we purchased.
1. Is that correct.
2. What will be our position if X's son approaches to court?
3. Will there be any advantage to us by telling the fact that we are owning and paying the tax of the land for last 11 years?
4. Mr X has mentioned in the sale deed that there is no other owners for the land and also mentioned that he and his other properties will be liable if something like that arises. DOes this give us any upper hand.
Again I humbly request the experts opinion, especially of Mr. Ramachandaran Sir, who is a subject matter expert. Raj kumar ji, please dont think I am underestimating your advice. I am confused because of the lawyers in Kerala.
Raj Kumar Makkad
(Expert) 02 February 2012
repeated query which has been replied 4 times in this section.
Azhar
(Querist) 02 February 2012
dear raj kumar sir,
with all due respects, i have mentioned in the title itself that it is a re post. And i dont think it has been posted 4 times. I posted this again, only because, Mr. Ramachandran sir mentioned he will not answer as it was posted as anonymous. I didnt see any option to change the author from anonymous to Synonymous. Even I was advised by Mr. Shroff to re post it with name.
Sorry if I hurted you by posting this.
R.Ramachandran
(Expert) 02 February 2012
Who is a Coparcenar:
Every Hindu family is presumed to be a joint family.
Coparcenary is a concept narrower than a Joint Hindu Family. A joint family consists of both males and females. But a coparcenary consists of only male members upto four generations within the family. (However, this position has undergone change in that even daughters in the family have also been granted equal coparcenary status.)
Starting from a seniormost male member with his lineal male descrndants till four generations (inclusive of him) of male line will form a coparcenary. If there is a lineal male descendant in the fifth generation, he will be a member of the joint family, but will not be a coparcener as he is removed from the seniormost male member by more than four generations.
While there is a presumption about the jointness of a Hindu Family, there is no such presumption that every Hindu Family is possessed with property.
In case the joint hindu family possesses property, then the male members who are the coparceners, have a right in the joint Hindu family property, by their sheer birth in the said family. THIS IS ONE TYPE OF COPARCENERY PROPERTY.
ANOTHER TYPE OF COPARCENARY PROPERTY:
According to Hindu classical law, a property inherited by the son, from his three paternal ancestors in the male line, would be coparcenary property in his hands.
This can be explained by the following example. Assume for a while, that a male acquires certain properties of his own. Though to start with such a property is his personal property, upon his death when his son inherits the same, it would become ancestral/coparcenary property (because he receives it from his father) in his hands.
This was the position prior to the enactment of Hindu Succession Act, 1956.
Hindu Succession Act is intended to amend and codify the law governing intestate succession among Hindus. It both modifies and codifies the Hindu Law.
Section 4 of the Act provides that any rule of Hindu law or custom, inconsistent with the provisionsof the Act would cease to have any effect. In other words, wherever the classical law has been modified or abrogated by any provision of the HSA 1956, the statutory provisions would prevail.
Sections 8 to 13 and Schedule-I of the HSA provides for the law of inheritance of the property of a male Hindu.
Though a hindu male would inherit the property from his father, a question arises regarding the character of the property so inherited by him - whether it is ancestral / coparcenary property in relation to his male decendants upto three generations, or it is his absolute private/personal property.
The Apex Court has held that the son inheriting the property from his father, grandfather or great grandfather, under the HSA 1956 would take it as his exclusive or absolute property, with no right of his male descendants over it. In other words, it has been held that the property so inherited would be his personl property and not coparcenary property.
IT SHOULD FURTHER BE CLEARLY UNDERSTOOD THAT THE ABOVE POSITION IS ONLY IN REGARD TO THOSE PROPERTIES WHICH ARE INHERITED.
However, if a property is received by a co-parcener by way of partition, then the said property would continue to retain its coparcenary character with regard to the persons male descendants (now even female descendants). But even after receipt of the property it may become individual/private property if the male member remained unmarried or issue less. As far as the female coparcener is concerned, the property will lose its ancestral/coparcenary character once she receives it. It will become her absolute property.
Having given the background, now I will try to answer your specific queries:
1. If it is proved to be a joint family property, then it will continue to be a coparcenary property in the hands of a male with reference to his male descendants (now including the daughters). Therefore, there is no requirement that there should not be any partition. On the contrary, even if partition takes place, the share that falls to a male will be regarded as coparcenary property with reference to his male (now even female) descendants. The property will change character to that of his personal property only when he remains unmarried or issue less. Other wise it will continue to be a coparcenary property.
Therefore, your understanding that once the property is partitioned, it will become personal property in the hands of the person who gets a share is NOT CORRECT.
As regards the position of Thiyya in Kerala, you have to consult local civil lawyers to know the exact position.
In the Hindu Succession Act, there is provision in regard to devolution of property in case of Tarwad, Tavazhi, Kutumba, Kavaru or Illom. I am not sure whether the Thiyya in Kerala fall into any of the above categories.
Therefore, you have to approach a civil lawyer in Kerala to know about the exact legal provision.
Azhar
(Querist) 02 February 2012
Thank you very much Ramachandran Sir for answering my query. Few more queries, if you can please answer.
Below quoted from your reply
"The Apex Court has held that the son inheriting the property from his father, grandfather or great grandfather, under the HSA 1956 would take it as his exclusive or absolute property, with no right of his male descendants over it. In other words, it has been held that the property so inherited would be his personl property and not coparcenary property.
IT SHOULD FURTHER BE CLEARLY UNDERSTOOD THAT THE ABOVE POSITION IS ONLY IN REGARD TO THOSE PROPERTIES WHICH ARE INHERITED.
However, if a property is received by a co-parcener by way of partition, then the said property would continue to retain its coparcenary character with regard to the persons male descendants (now even female descendants)."
Q1. What is the difference between inheriting a property and getting a property through partition.
Q2. Suppose a person sells his property (he got it from his father through partition after fathers death; no will) and the person who sold has a son who has 50% share on the property. Th son has not joined the sale deed. Is there a time limit by which the sale deed has to be challenged by the son.
Q4. Mr. A - original owner (may be self acquired; not sure.)
Mr.B - got from A in 1936 through partition
Mr.C- Got from B in 1964 through partition
Mr.D - got from C in 1994 through partition
Mr. D sold his property to me in 2000
Mr.D is still alive.
Mr.E (D's son) born before 1976; claims to have 50% share on the said property citing THE KERALA JOINT HINDU FAMILY SYTEM (ABOLITION) ACT, 1975
link to the act http://kmmathew.com/art003h.html
As you mentioned above E is the 5th generation. So does he have right.
I have consulted kerala lawyers but according to them E has rights. Once I get your opinion I can again go back to them and check.
Thanks once again for your kindness.
R.Ramachandran
(Expert) 03 February 2012
Dear Mr. Azhar,
Answer to Q1.
If there is a property of A. He distributes during HIS LIFE TIME (i.e. when he is alive) to his sons then it is partition.
If the property becomes available to his sons after HIS DEATH (when he has not left any WILL) then that is called "inheritance".
In the first case, it will be treated as "ancestral property", while in the latter case it will be treated as 'personal property' in the hands of the recipient.
Answer to Q2.
As already answered to your query 1 above, if the property comes to the son after the death of his father (i.e. if the son inherits the property) then it will be his personal property. His son (i.e. grandson of the deceased) will have no share/ claim in it. THEREFORE, your statement that his son has 50% share in it is not at all correct. Being his personal property, the son who inherited the property from his father has every legal right to dispose of the property without anybody's consent. HE IS THE ABSOLUTE OWNER OF THE SAME and as such he can sell without anybody's permission / signature / consent.
Answer to Q.4.
From the information provided by you, it seems it is an 'ancestral property'. Since the Kerala Joint Hindu Family system (Abolition) Act, 1975 came much after the birth of "E", he will definitely have a share in the property (probably 50% in the instant case). In other words, the Kerala JHF System (Abolition) Act, has no effect on the rights of "E".
Though "E" is the fifth generation taking into Account "A", but if "A" is not alive, then he will come within 4th generation. In any case, according to you, partition had taken place and D had received his share. With reference to D, E is the second generation and therefore eligible to have a share.
Azhar
(Querist) 03 February 2012
Dear Ramachandran Sir
Thanks a lot for your efforts to post my reply. I am almost 90% clear with what you have said. But one more questions I have to ask. This is based on your answer to Q4.
Q4. Mr. A - original owner (may be self acquired; not sure.)
Mr.B - got from A in 1936 through partition after A's death without will
Mr.C- Got from B in 1964 through partition
after B's death without will.
Mr.D - got from C in 1994 through partition
after C's death, again no will.
That means D inherited from his father C. And you have mentioned above that, the property inherited becomes his own property. D sold it to me in 2000.
So how will E have rights on the same.
Please can you spare a few more minutes. Again thanks a lot from the bottom of my heart.
R.Ramachandran
(Expert) 03 February 2012
Dear Mr. Azhar,
In the above case, since it was aleady an ancestral property, it will not fall under the category of inheritance, but under the category of 'devolution of coparcenary property on the surviving members'. Since D and E are coparceners both of them have 50% share each.
