To determine a person’s share in Hindu ancestral property, three sources of law have to be understood – 1) Old Hindu law 2) The Hindu Succession Act, 1956 and 3) Judicial decisions.
To determine a person’s share in Hindu ancestral property, three sources of law have to be understood – 1) Old Hindu law 2) The Hindu Succession Act, 1956 and 3) Judicial decisions..
The Hindu Succession Act tinkered only with certain aspects of Hindu law and anything not touched upon by the Act is still governed by Old Hindu law, as determined by the religious texts. The Hindu school was divided mainly into the Dayabhaga school prevalent in Assam, Bengal and Punjab while the rest of India followed the Mitakshara school. Apart from this, separate rules of inheritance was followed in the West Coast, i.e., Kerala and Mangalore.
What is ancestral property ? Property inherited upto 4 generations of male lineage (i.e., father, grand father, etc.) is called as ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.
What is not ancestral property ? Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties. Self acquired property on the other hand can become ancestral property only if it is thrown into the pool of ancestral properties and enjoyed in common. This is a matter to be determined on the facts and circumstances of the case.
HUF different from co-parcenary : Normally the words HUF (Hindu United Family) and co-parcenary / ancestral property are used by the layman interchangeably. This is not so. A HUF is simply a Joint Hindu family living together, which need not necessarily own property. It could also have females as its members, which was not allowed in a traditional co-parcenary, (until recent amendments made in the center and the state) where only males were allowed to be members.
HUF different for tax purposes : The income tax law is a separate class by itself and simply assesses the income of a family which has declared itself as a HUF, which could even consist of a father, wife and daughter and which need not necessarily own property.
Hindu Succession Act : This act repealed certain acts passed during the British era, like Hindu Gains of Learning Act and Hindu Women’s right to Property Act. Such acts had introduced the concepts of self acquired properties and rights of widows to have a share equal to that of a son in coparcenary property after the death of a Hindu male. However the progress made by these acts have not been lost and the passing of The Hindu Succession Act again sought to enlarge the rights of Hindu daughters in owing a piece of ancestral property.
Section 6: In order to give rights to daughters, the act introduced a legal fiction of ‘notional partition’ whereby when a male Hindu dies after the commencement of the act, (leaving behind female relatives and without executing a will) his share in the coparcenary property is deemed to have been divided at the time of his death, whether actual partition has taken place or not.
a) This means that if a family consists of a father, mother, two sons and a daughter, the share of the father at the time of death, after notional partition would have been 1/4th share in ancestral property. This is because each of the sons take one share (as coparceners), the wife takes one share and the father takes one share as per the rules of old Hindu law (and as per judicial pronouncements which have interpreted and enlarged the scope of the Hindu Succession Act).
b) The share belonging to the father is then again sub - divided equally between all the heirs, i.e., mother, sons and daughter. This 1/4th share goes out of the co-parcenary property for all times. Thus the sons apart from inheriting 1/4th share as coparceners in their own right, also inherit a small share in their individual capacity from the divided share of their father. The share inherited by the mother and daughter also goes out of the coparcenary property. There are conflicting judgments on whether the shares of the sons are to be treated as coparcenary properties or not after partition, by the different high courts and supreme court.
Will and Section 8 : Any interest in any co-parcenary property can also be willed away and this share also goes out of the purview of the ancestral property. Also, if a father dies leaving self acquired property, his son will inherit it absolutely. The grandson cannot claim the same as ancestral because it was inherited under Section 8 of The Hindu Succession Act. In every instance it should be determined if a property was inherited by succession (section 8) or survivorship (section 6) or by testamentary (will) succession.
State and Central amendments: The Hindu Succession Act has been amended in the center in 2005 giving equal rights to daughters in coparcenary property. The same rights were given to daughters by various state amendments made earlier, in Andhra Pradesh, Karanataka, Tamil Nadu and Maharashtra. If a daughter has not been married as on 30.7.94, she gets equal share as that of a son in coparcenary property in Karnataka. Thus the daughters get a right by birth similar to that of a son. If she is unmarried (or married and has no child or children) and dies, her co parcenary property will be inherited by other coparceners, if she has not left a will to the contrary. If she has a child the property will be inherited by her child or children by succession, in the absence of a will
Properties in Kerala and Mangalore (West Coast of India) : After the Hindu Succession Act, the traditional system of matrilenial property divisions found in Kerala and the Aliyasantana law prevalent in Mangalore also were deemed to have been notionally partitioned as per prevailing custom (per capita) and the share of the deceased male was then inherited by Class I heirs (mother, spouse, son, daughter, children of predeceased children) in equal shares.
The effect of the sum total of the laws and its interpretation is to virtually abolish the continuation of the coparcenary property and it will be difficult to sustain it in the long run because several portions of the coparcenary property have been excluded from what constituted the original coparcenary property.
VATSALA DHANANJAY, ADVOCATE