Amit Kumar
Asked September 02, 2016

Ancestral property distribution dispute

  • 1 Answer
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We have ancestral properly in form of agricultural land my father is having 3 brothers as we are living outside of native place from long time due to employment and education opportunities our Grandfather is taking full favor of our uncle only and threatening us to sell/distribute property among 3 brothers only. Can we get our property by some legally, Is there any law for ancestral property equal distribution? Please suggest and help with proper solution.

Answer 1

By: Atrayee De, Lawfarm Researcher

Specific provisions which are involved are Section 6 of the Hindu Succession Act, 1956, Section 44 Transfer of property Act, 1882. Though no specific section deals with your problem, but, the Hon’ble Supreme Court of India through a plethora of judgments has made the position of law very clear.

To understand the core issue in hand some of the fundamental concepts have been explained with the relevant corresponding case laws.

Meaning of Ancestral property:

As observed by the Hon'ble Supreme Court of India, Property inherited by a Hindu from father, father’s father or father’s fathers’ father, is ancestral property.[1]

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.”[2]

Right of a son in his father’s and grandfather’s estate

It is undoubtedly true that the son has a right, by birth both in his father’s and grandfather’s estate. In the ancestral or grandfather’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 predominant 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.[3]

Facts of Present Case

It is evident from the present facts that the property in dispute is the coparcenary property of the Joint Hindu Family. Therefore, the rules mentioned under Hindu Succession Act, 1956 specifically the explanation appended to Section 6 comes into force.

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 into the common stock.[4]

Right to Ask for Partition

In Commissioner of Wealth Tax. Kanpur v. Chander Sen[5] , (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.

Therefore, it is not only the property of your grandfather, but your father by virtue of his birth in the family has an equal right to the ancestral property. Also, according to the sound principles of law, you can ask for a partition to secure your interest in your property. A father in his right as patria potetas or otherwise can effect a partition between himself and his son of the joint family property of HUF. However, he has to allot equal shares to the sons.[6]

 

Conclusion

It is a clear position in law that all the children have an equal share in the joint family property and you cannot be alienated from your rightful share in the property. The Hon’ble Supreme Court, while considering a similar question in V.K. Surendra v. V.K. Thimmaiah and Ors.,[7] clearly observed that “In the light of discussions as made above, we hold that those suit schedule properties are joint family properties of Kunnaiah along with 4 sons and the co-parceners have equal shares in the properties. Accordingly, 4 sons and Kunnaiah are entitled to the 1/5th share of the total properties.” Therefore, you have an equal share in the property and your interest cannot be alienated. Also, it has been held by a full bench of the Hon’ble Supreme Court in Anant Kibe v. Purushottam Rao and Ors.,[8] that in a joint Hindu Family, it is the right of family members to ask for a partition.

Therefore, if in any case, you feel that there is a threat of alienation and also if you want to secure your interest in the property, it is your right to ask for a partition in the joint family property and you should exercise it.

 

 

[1] U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising out of SLP (C) No. 11785 OF 2007)

[2] C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another, 1953 AIR 495, 1954 SCR 243

[3] ibid

[4] Amit Johri vs Deepak Johri & Ors. (2014), Ruling of Delhi High Court

[5] (1986) 3 SCC 567: (AIR 1986 SC 1753)

[6] Apporva Shantilal Shah vs. CIT [1983] 141 ITR 558 (S. C.)

[7]  2013 (3) RCR (Civil) 64

[8] AIR 1984 SC 1121

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