Concept of Ancestral Property & Inheritance Law in India

 Introduction

The inheritance laws pertaining to the division of property in India among Hindus are dealt with under Hindu Succession Act, 1956 and Amendment to it in 2005. Before the passing of this Act, the rights of sons and daughters relating to inheritance were different. Previously the sons had exclusive inheritance rights over the father’s property, whereas the daughters had minimal rights over ancestral estate. However, once the daughters were married, they ceased to have any rights over the father’s estate, and the property was passed to sons, son’s sons and so on.

However, the 2005 amendment finally brought daughters (whether married or unmarried) on an equal footing with sons by holding that daughter have equal rights, liabilities and share as a son. Also, a daughter of a Coparcener (i.e., someone who has a right to ancestral property) becomes a coparcener as a right by birth, as a son. After the Amendment, a daughter was given absolute inheritance rights to her father’s property. Moreover, before or after the 2005 amendment, daughters shall have the same rights in their father’s ancestral property as the son.

The Act abolishes Hindu woman’s limited right on the estate and confers on their absolute property right.

Property owned by a Hindu female is to be held by her as her absolute property, and she has all the powers to deal with it.

• Testamentary Succession – distribution of property when a person dies by making a Will.
• Intestate Succession – When a person dies without making a Will, his property will be distributed by Operation of Law.

Description of Family Property

As per Hindu law, property is divided into two types of properties, i.e., ancestral and self-acquired property.

The property inherited up to three generations is known as ancestral property, and the same is a part of coparcenary property. The property descends from the father, father’s father, and great grandfather.

Although, a self-acquired property is referred to as a property that is bought by the father with his own money and not inherited from ancestors.

Ancestral Property

• Under the Hindu Succession Act, a daughter has the right to ancestral property by birth. A father cannot dispose of said property by eliminating his legal heirs. It is crucial to note that a father cannot transfer, sell or gift the said property in accordance with his discretion to any third person. It simply means that a father cannot deprive his daughter of her lawful share in the ancestral property. A daughter has the full right to inherit ancestral property from her birth. If a father transfers ancestral property to a third person, the daughter reserves the right to object.
• Ancestral property is a property that a Hindu inherits from his father, grandfather or grandfather’s father. Any property passed in its undivided form to four generations of male lineage is known as ancestral property. The right of a grandson in ancestral property is from his birth itself.
• Ancestral property can be partitioned via partition deed or suit of partition in the Court of Law.

Self Acquired Property

When we talk about the self-acquired property of a father, then a daughter has no birth right over the same. On the contrary, in self-acquired property, a father, as per his own will, has a right to gift or even Will the property to any third person, and the daughter will not have a right to object. As per the Hindu Succession Act, a daughter can only claim her share in the ancestral property of her father and not in the self-acquired property. In addition to this, if the father dies without executing a Will, then the daughter can claim her share in the self-acquired property, similar to a son.

Succession of Hindu Male Dying Intestate

As per Section 8, if a Hindu Male dies without making a Will, then his property will be distributed – 

• Firstly, upon class-I heirs (specified in the schedule) ;
• Secondly, in case there are no class I heirs, then among class-II heirs (specified in the schedule);
• Thirdly, if there is no heir from Class I & Class II, then the property will be distributed amongst the Agnates of the deceased; and
• Finally, if there is not even Agnate, then the property will be divided between the Cognates of the deceased.

Class – I Heirs

• Widow,
• Daughter,
• Mother,
• Son,
• Daughter of a son who is deceased
• Daughter of a daughter who is deceased
• Daughter of pre-deceased son of a pre-deceased son
• Deceased son’s widow
• Widow of Pre-deceased son of a pre-deceased son.
• Son of a deceased son
• Son of a daughter who is deceased
• Son of pre-deceased son of a pre-deceased son

Class – II Heirs

1. Father
2. Son’s Daughter’s Son/Daughter, Brother & Sister
3. Daughter’s Son’s Son/Daughter, Daughter’s Daughter’s Son/Daughter
4. Brother’s Son/Daughter & Sister’s Son/Daughter
5. Father’s Father/Mother
6. Father’s Widow & Brother’s Widow
7. Father’s Brother/Sister
8. Mother’s Father/Mother
9. Mother’s Brother/Sister

Succession Among the Agnates

Any male or female successor/descendant through male links from a common ancestor through a male lineage are known as agnates. Ascendant agnates are always preferred to the descendant agnates.

Succession Among the Cognates

A person is a cognate of another if the two are related by blood or adoption but not wholly through males. There must be at least one female link.

If there are no cognates, then the deceased person’s property will go to the government. (Doctrine of escheatment – Sec 29)

The question of escheat arises

1. When a Hindu intestate has left no legal heir
2. When the intestate has left an heir who is statutorily disqualified from succeeding (Section 25-28 of the Act)

Mode of Succession

Accordingly, class I heirs are also called “preferential heirs”, as the presence of any one of them excludes heirs in all other classes. They are also called “simultaneous heirs”, as heirs in Class I inherit simultaneously – one does not exclude the other.

Section 19 in The Hindu Succession Act, 1956

Mode of Succession of two or more heirs—If two or more heirs succeed together with the property of an intestate, then the property is taken in the following manner:

(a) as provided in the Hindu Succession Act, per capita and not per stirpes

(b) as tenants-in-common and not as joint tenants

Distribution of Property Among Class – I Heirs

• This section describes the rules as to how much every heir shall get to their heir.
• The surviving sons, daughters and mother of the intestate shall each take one share.
• The heirs in each of pre-deceased son or daughter of the intestate shall take amongst them one share.
• The intestate’s widow or widows, together shall take one share.

Distribution of Property Among Heirs of Class II

The deceased person’s property (who died without making a Will) shall be divided amongst the heirs stated in any one entry in Class II of the schedule. Moreover, the legislation does not lay down any discrimination rules between the male or female heir. Therefore, they all shall take per capita.

Section 12 Order of Succession – agnates and cognates 

This order is determined in accordance with the following rules of preference (u/s12)

• Out of two heirs, the one who has fewer or no degree of ascent is preferred.
• Where there are several degrees of ascent is the same or none, that heir is preferred which has fewer or no degrees of descent.
• Where none of the heirs is entitled to be preferred to the other rules mentioned above, they take simultaneously.

Effects of Section 14

• Any property owned by a female Hindu, acquired before or after the Hindu Succession Act, shall be held by her as full owner and not as a limited owner. [u/s14(1)]
• Declared a female as full owner of the property. Now she can sell, dispose and alienate the property without restricting her rights.
• In cases falling under this section, declare a Hindu widow to be the absolute owner of the property given instead of her maintenance.

Succession of Hindu Female Dying Intestate

Section 15 – If a Hindu female dies without making a Will, her property would be divided as follows: –

• Firstly, and foremost, upon the sons and daughters (including the children of any pre-deceased son or daughter and the husband;
• Secondly, the heirs of the husband;
• thirdly, the mother and the father;
• fourthly, the heirs of the father;
• Lastly, upon the heirs of the mother.
• In the case of a Hindu female who dies intestate, without any children or pre-deceased children, any property she inherits from her parents shall not devolve upon her husband or his heirs but revert to her natal family. Likewise, in the case of a Hindu female who dies intestate and without any children or pre-deceased children, any property inherited from her husband or father-in-law devolves upon her husband’s heirs.

Distribution of Property Among Heirs of Hindu Female

Section 16. Order of Succession distribution among heirs of a female Hindu. 

The order of Succession among the heirs stated in Section 15 and distribution of the intestate’s property among those heirs shall take place in accordance with the following rules: –

• Those on one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.
• If a son or daughter of the intestate had pre-deceased the deceased /intestate, leaving his or her children of such son or daughter shall take amongst them the share which son or daughter would have taken if surviving at the intestate’s death.

CONCLUSION

Amendments to the Hindu Succession Act are significant. They are crucial steps towards gender equality and abolition of the patrilineal inheritance system prevailing among Hindus.

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