Practical Questions on

ANCESTRAL PROPERTY
(Answers with support of the High Courts and the Supreme
Court Rulings)
[PART-I]
By
Y.SRINIVASA RAO
Meaning of Ancestral property:-
Property inherited by a Hindu from his father, father’s father or
father’s fathers’ father, is ancestral property. [U.R.Virupakshaiah
vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising
out of SLP (C) No. 11785 OF 2007) Supreme Court of India
ruling].

In Mulla’s Principles of Hindu Law (15th Edition), it is stated at

page 289 :
“………. if A inherits property, whether movable or immovable,
from his father or father’s father, or father’s father’s father, it is
ancestral property as regards his male issue. If A has no son,
son’s son, or son’s son’s son in existence at the time when he
inherits the property, he holds the property as absolute owner
thereof, and he can deal with it as he pleases ………. A person
inheriting property from his three immediate paternal ancestors
holds it, and must hold it, in coparcenary with his sons, sons’
sons and sons’ sons’ sons’ but as regards other relations he holds
it and is entitled to hold it, as his absolute property.” [Smt. Dipo
vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20]
Again at page 291, it is stated :
“The share which a coparcener obtains on partition of ancestral
property is ancestral property as regards his male issue. They
take an interest in it by birth, whether they are in existence at
the time of partition or are born subsequently. Such share,
however, is ancestral property only as regards his male issue. As
regards other relations, it is separate property, and if the
coparcener dies without leaving male issue, it passes to his heirs
by succession.” [Smt. Dipo vs Wassan Singh & Others, 1983 AIR
846, 1983 SCR (3) 20].
The Hon’ble Supreme Court observed that “Ancestral property
means, as regards sons, property inherited from a direct male
lenial ancestor, and as regards collaterals property inherited
from a common ancestor “.[Maktul vs Mst. Manbhari & Others,
1958 AIR 918, 1959 SCR 1099].

Under custom, the term `ancestral immovable property’ has

been understood in the sense in which it has been defined in
explanation 1 to Art. 59 of Rattigan’s Digest of Customary Law
and under all canons of construction of statutes it will not be
permissible to resort to the dictionary in preference to this
definition. The term has a technical meaning in Hindu law and
any use of the dictionary meaning of the term in construing
statutes dealing with Hindu law subjects will be questionable.
The same is the case where a statute regulates limitation for
suits under custom.” [CASE NO.:Appeal (civil) 7122 of 1997,
Ranbir singh and others Vs.Kartar Singh and others, DATE OF
JUDGMENT: 25/02/2003]
The essential feature of ancestral property is that if the person
inheriting it has sons, grandsons or great-grandsons, they
become joint owner’s coparceners with him. They become
entitled to it due to their birth. [U.R.Virupakshaiah vs Sarvamma
& Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising out of SLP (C)
No. 11785 OF 2007) Supreme Court of India ruling.]
What is separate property?
It is equally well settled that excluding the property inherited
from a maternal grandfather the only property which can be
characterised as ancestral property is the property inherited by a
person from his father, father’s father, or father’s father. That
means property inherited by a person from any other relation
becomes his separate property and his male issue does not take
any interest therein by birth. Thus property inherited by a person
from collaterals such as a brother, uncle, ect., cannot be said to
be ancestral property and his son cannot claim a shre therein as
if it were ancestral property. There can, therefore, be no doubt
that the property which the appellant inherited from his uncle
(natural father) was his separate property in which his major son
could not claim any share whatsoever. [Madanlal Phulchand Jain
vs State Of Maharashtra And Ors, 1992 AIR 1254, 1992 SCR (2)
479].
Each son upon his birth takes an interest equal to that of his
father in ancestral property
It is true that under the Mitakshara Law each son upon his birth
takes an interest equal to that of his father in ancestral property,
both movable and immoveable. This right is independent of his
father.[Madanlal Phulchand Jain vs State Of Maharashtra And
Ors, 1992 AIR 1254, 1992 SCR (2) 479].
Who is Coparcener?
Coparcener. One who shares (equally) with others in inheritance
in the estate of a common ancestor [S. 6, expln. 1, Hindu
Succession Act]”.

What is coparcenery property?

Coparcenary property means and includes: (1) ancestral
property, (2) acquisitions made by the coparceners with the help
of ancestral property, (3) joint acquisition of the coparceners
even without such help provided there was no proof of intention
on their part that the property should not be treated as joint
family property, and (4) separate property of the coparceners
thrown inot the common stock. [Amit Johri vs Deepak Johri &
Ors. (2014), Ruling of Delhi High Court].

Coparcenary property. The expression ‘Coparcenary property’

includes property in which the deceased husband had an interest
as a joint owner during his life time and, therefore, ancestral
property. Coparcenary property means the property which
consists of ancestral property, or of joint acquisitions, or of
property thrown into the common stock and accretions to such
property.” [Uday Narendra Shah vs Narendra Amritlal Shah,
NOTICE OF MOTION (L) NO. 2347 OF 2013 IN SUIT (L) NO.
1069 OF 2013. Bombay High Court ruling].

Ownership of father and son in ancestral property:

The foundation of the doctrine of equal ownership of father and
son in ancestral property is the well known text of Yagnavalkya.
Book 2. 129, which says: “The ownership of father and son is co-
equal in the acquisitions of the grandfather, whether land,
corody or chattel.” [C. N. Arunachala Mudaliar vs C. A.
Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR
243]

What is the right of a son in his father’s and grandfather’s

estate ?
It is undoubtedly true that according to Mitakshara, the son has
a right, by birth both in his father’s and grandfather’s estate but
as has been jointed out before. a distinction is made in this
respect by Maitakshara itself. In the ancestral or grand father’s
property in the hands of the father, the son has equal rights with
his father; while in the self-acquired property of the father, his
rights are unequal by reason of the father having an independent
power over or predominent interest in the same. It is obvious,
however, that the son can assert this equal right with the father
only when the grandfather’s property has devolved upon his
father and has become ancestral property in his hands. [C. N.
Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And
another, 1953 AIR 495, 1954 SCR 243].

When can the property of the grandfather normally vest in

the father as ancestral property?
The property of the grandfather can normally vest in the father
as ancestral property if and when the father inherits such
property on the death of the grandfather or receives it by
partition, made by the Grandfather himself during his lifetime.
On both these occasions the grand father’s property comes to the
father by virtue of the latter’s legal right as a son or descendant
of the former and consequently it becomes ancestral property in
his hands. [C. N. Arunachala Mudaliar vs C. A. Muruganatha
Mudaliar And another, 1953 AIR 495, 1954 SCR 243].
Can father obtain grandfather’s property by way of gift?
But when the father obtains the grandfather’s property by way of
gift, he receives it not because he is a son or has any legal right
to such property but because his father chose to bestow a favour
on him which he could have bestowed on any other person as
well. The interest which he takes in such property must depend
upon the will of the grantor. [C. N. Arunachala Mudaliar vs C. A.
Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR
243].
When can a property be reckoned as ancestral property?
To find out whether a property is or is not ancestral in the hands
of a particular person, not merely the relationship between the
original and the present holder but the mode of transmission also
must be looked to; and the property can ordinarily be reckoned
as ancestral only if the present holder has got it by virtue of his
being a son or descendant of the original owner. [C. N.
Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And
another, 1953 AIR 495, 1954 SCR 243].
What can be exempted from partition of ancestral
property?
Mitakshara refers to a text of Narada which says: “Excepting
what is gained by valour, the wealth of a wife and what is
acquired by science which are three sorts of property exempt
from partition-, and any favour conferred by a father.” [C. N.
Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And
another, 1953 AIR 495, 1954 SCR 243].
What are the rights of posthumous sons and sons born
after partition?
Chapter 1, section 4 of Mitakshara deals with effects not liable to
partition and property “obtained through the father’s favour”
finds a place in the list of things of which no partition can be
directed. This is emphasised in section 6 of chapter I which
discusses the rights of posthumous sons or sons born after
partition. In placitum 13 ‘of the section it is stated that though a
son born after partition takes the whole of his father’s and
mother’s property, yet if the father and mother has affectionately
bestowed some property upon a separated son that must remain
with him. [C. N. Arunachala Mudaliar vs C. A. Muruganatha
Mudaliar And another, 1953 AIR 495, 1954 SCR 243].
What is the right of Mitakshara father in making partition
of property?
A Mitakshara father can make a partition of both the ancestral
and self-acquired property in his hands any time he likes even
without the concurrence of his sons-, but if he chooses to make a
partition. he has got to make it in accordance with +the
directions laid down in the law. Even the extent of inequality,
which is permissible as between the eldest and the Younger sons,
is indicated in the text(3). Nothing depends upon his own favour
or discretion. When, however, he makes a gift which is only an
act of bounty, he is unfetterd in the exercise of his discretion by
any rule or dictate of law. It is in these gifts obtained through the
favour of the father that Vijnaneswar, following the earlier sages,
declares the exclusive right of the sons. [C. N. Arunachala
Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR
495, 1954 SCR 243].
What a ”self-acquisition” is?
The definition is based upon the text of Yagnavalkya that
“whatever is acquired by the coparcener himself without
detriment to the father’s estate as present from a friend or a gift
at nuptials, does not appertain to the co-heirs.” [C. N.
Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And
another, 1953 AIR 495, 1954 SCR 243].
Does the property gifted by father to son become ancestral
property?
A property gifted by a father to his son could not become
ancestral property in the hands of the donee simply by reason of
the fact that the donee got it from his father or ancestor. As the
law is accepted and well settled that a Mitak- shara father has
complete powers of disposition over his selfacquired property, it
must follow as a necessary consequence that the father is quite
competent to provide expressly, when he makes a gift, either
that the donee would take it exclusively for himself or that the
gift would be for the benefit of his branch of the family. If there
are express provisions to that effect either in the deed of gift or a
will, no difficulty is likely to arise and the interest which the son
would take in such property would depend upon the terms of the
grant. If, however, there are no clear words describing the kind
of -interest which the donee is to take, the question would be one
of construction and the court would have to collect the intention
of the donor from the language of the document taken. [C. N.
Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And
another, 1953 AIR 495, 1954 SCR 243].
When son gets a share in father’s property?
In Commr. of Wealth Tax. Kanpur v. Chander Sen, (1986) 3 SCC
567: (AIR 1986 SC 1753), where one of us (Sabyasachi Mukharji,
J.) observed that under the Hindu Law, the moment a son is born,
he gets a share in father‟s property and becomes part of the
coparcenary. His right accrues to him not on the death of the
father or inheritance from the father but with the very fact of his
birth. Normally therefore, whenever the father gets a property
from whatever source from the grandfather or from any other
source, be it separate property or not, his son should have a
share in that and it will become part of the joint Hindu family of
his son and grandson and other members who form joint Hindu
family with him. This Court observed that this position has been
affected by Section 8 of the Hindu Succession Act, 1956 and,
therefore, after the Act, when the son inherited the property in
the situation contemplated by Section 8, he does not take it as a
Karta of his own undivided family but takes it in his individual
capacity.[Amit Johri vs Deepak Johri & Ors. (2014), Ruling of
Delhi High Court].
Classify the property under Hindu Law.
It may be true that property under Hindu Law can be classified
under two heads:- (i) coparcenary property; and (ii) separate
property. Coparcenary property is again divisible into (i)
ancestral property and (ii) joint family property which is not
ancestral. This latter kind of property consists of property
acquired with the aid of ancestral property and property
acquired by the individual coparcener without such aid but
treated by them as property of the whole family. [Amit Johri vs
Deepak Johri & Ors. (2014), Ruling of Delhi High Court].
Short notes of Joint Property, Joint family property and
joint ancestral family property.
It may also be true that the three notions: (i) joint property, (ii)
joint family property, and (iii) joint ancestral family property are
not the same. In all the three things there is no doubt a common
subject, property, but this is qualified in three different ways.
The joint property of the English law is property held by two or
more person jointly, it characteristic is survivor-ship. Analogies
drawn from it to joint family property are false or likely to be
false for various reasons. The essential qualification of the
second class mentioned above is not joints merely, but a good
deal more. Two complete strangers may be joint tenants
according to English law; but in no conceivable circumstances
except by adoption could they constitute a joint Hindu family, or
in that capacity, hold property. In the third case, property is
qualified in a two-fold manner, that it must be a joint family
property and it must also be ancestral. It is obvious that there
must have been a nucleus of joint family property before an
ancestral joint family property can come into existence, because
the word ancestral connotes descent and hence pre- existence.
But because it is true that there can be no joint ancestral family
property without pre-existing nucleus of joint family property, it
is not correct to say that these cannot be joint family property
without a pre- existing nucleus, for, that would be identifying
joint family property with ancestral joint family property. Where
there is ancestral joint family property, every members of the
family acquires in it a right by birth which cannot be defeated by
individual alienation or disposition of any kind except under
certain peculiar circumstances. This is equally true of joint family
property. Where a sufficient nucleus in the possession of the
members joint family has come to them from a paternal ancestor,
the presumption is that the whole property is ancestral and any
members alleging that it is not, will have to prove his self-
acquisition. Where property is admitted or proved to have been
joint family property, it is subject to exactly the same legal
incidents as the ancestral joint family property, but differed
radically in original and essential characteristics from the joint
family is the tie of sapindaship without which it is impossible to
have a joint Hindu family, which such a relationship is
unnecessary in the case of a joint tenancy in English laws. [Amit
Johri vs Deepak Johri & Ors. (2014), Ruling of Delhi High Court].
Write short notes on ‘Joint Hindu family’ and ”Hindu
copercenary”.
In Mulla’s Hindu Law (17th Edn) Article 212(2), 213, it is stated :
“‘ 212. Joint Hindu family:– The joint and undivided family is the
normal condition of Hindu society. An undivided Hindu family is
ordinarily joint not only in estate but also in food and worship.
The existence of joint estate is not an essential requisite to
constitute a joint family and a family, which does not own any
property, may nevertheless be joint. Where there is joint estates,
and the members of the family become separate in estate, the
family ceases to be joint. Mere severance in food and worship
does not operate as a separation. Possession of joint family
property is not a necessary requisite for the constitution of a
joint Hindu family. Hindus get a joint family status by birth, and
the joint family property is only an adjunct of the joint family.”
213. Hindu coparcenary :- A Hindu coparcenary is a much narrower
body than the joint family. It includes only those persons who
acquire by birth an interest in the joint or coparcenary property.
These are the sons, grandsons and great-grandsons of the holder
of the joint property for the time being, in other words, the three
generations next to the holder in unbroken male descent. See ‘
217. The above propositions must be read in the light of what has
been stated in the note at the top of this chapter. To understand
the formation of a coparcenary, it is important to note the
distinction between ancestral property and separate property.
Property inherited by a Hindu from his father, father’s father or
father’s fathers’ father, is ancestral property.[U.R.Virupakshaiah
vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising
out of SLP (C) No. 11785 OF 2007) Supreme Court of India
ruling.]
It has been so held by the Hon’ble Supreme Court in Bhagwan
Dayal (since deceased) and thereafter his heirs and legal
representatives Bansgopal Dubey & Anr. V. Mst. Reoti Devi
(deceased) and after her death, Mst. Dayavati, her daughter [AIR
1962 SC 287] in the following terms :
“16. The general principle is that every Hindu family is presumed
to be joint unless the contrary is proved; but this presumption
can be rebutted by direct evidence or by course of conduct. It is
also settled that there is no presumption that when one member
separates from others that the latter remain united; whether the
latter remain united or not must be decided on the facts of each
case. To these it may be added that in the case of old
transactions when no contemporaneous documents are
maintained and when most of the active participants in the
transactions have passed away, though the burden still remains
on the person who asserts that there was a partition, it is
permissible to fill up gaps more readily by reasonable inferences
than in a case where the evidence is not obliterated by passage
of time.” [See also Bhagwati Prasad v. Shri Chandramaul [(1966)
2 SCR 286].
Ancestral property and several joint owners.
The law in this behalf is clearly stated in Mayne’s Hindu Law and
usage Twelth Edition at page 295 as follows:-
“Where ancestral property has been divided between several
joint owners, there can be no doubt that if any of them have male
issue living at the time of the partition, the share which falls to
him will continue to be ancestral property in his hands, as
regards his male issue, for their rights had already attached
upon it, and the partition only cuts off the claims of the dividing
members. The father and his male issue still remain joint. The
same rule would apply even where the partition had been made
before the birth of the male issue or before a son is adopted, for
the share which is taken at a partition, by one of the coparceners
is taken by him as representing his branch.” [K.Ramananda
Mallaya vs K.Anasuya Bai, AS.No. 172 of 1995(C), Kerala High
Court.].
Coparcenary property, joint family property and ancestral
property:
Hindu coparcenary is a much narrower body than a joint family.
The coparcenary includes only those persons who acquire by
birth, an interest in the coparcenary property. They are the sons,
grandsons and great grandsons of the holder of the joint
property for the time being. A property inherited by a Hindu
from his father, father’s father or father’s father’s father is
ancestral property. [K.Ramananda Mallaya vs K.Anasuya
Bai, AS.No. 172 of 1995(C), Kerala High Court.].
At the same time property inherited by him from other relations
are his separate properties. The essential feature of the ancestral
property is that, if the person inheriting the ancestral property
has sons, grandsons or great grandsons, they become joint
owner’s or coparcenars along with him. They are entitled to the
said right due to their birth. If a son is born subsequently or a
grandson or a great grandson is born thereafter, the said son, or
grandson or great grandson also became entitled to an equal
right by their birth and all of them constitute the coparcenary.
Similarly if the father acquires his own property or inherits
property from other source which are not ancestral properties,
the other members of the coparcenary family cannot claim any
right in that property. On his death the said property would
devolve on his legal heirs. But it is not by survivorship but by
succession. At the same time when the self acquired property of
the father is devolved on his son or sons who are members of the
coparcenary, it becomes the coparcenary property. In that event
it could be claimed by his sons, son’s sons and great grandsons
due to their birth. If that be so it cannot be claimed by the son
who inherited it that he alone has right over the property or that
is his separate property.
Prior to the coming into force of Hindu Succession Act, 1956, if A
who had a son B inherited property from his father it became
ancestral property in his hands and B became a coparcenar with
his father. On the other hand if it was the separate property of A,
he has absolute right over the property and it cannot be claimed
by his son during his life time. But on his death his right passes
on to the son, though not by survivorship but by succession. Thus
even if A inherited the property from his brother and thereby it
was his separate property where he had independent absolute
right of disposal and the son did not acquire any right by birth,
and on his death that property descends to a male issue, then it
becomes ancestral property in the hands of the male issue who
inherited it. Thus if A who owned separate or self acquired
property died, on his death it passes on to the son B as his heir
and if B had a son C, C has an interest in that property by reason
of his birth and he becomes a coparcenar in respect of the said
property with his father B. At the same time, if the father died
after coming into force of Hindu Succession Act, 1956, then the
inheritance of the property of the father could only be as
provided under section 8 of the Hindu Succession Act, 1956.
[K.Ramananda Mallaya vs K.Anasuya Bai, AS.No. 172 of 1995(C),
Kerala High Court.].