Concept Of What Is Ancestral Property, Joint Family Property Under Hindu Law And Self Acquired Property

The right to property is a natural and inherent right of an individual. Most of the modern constitutions, except those of communist countries have recognized the right of private property. Therefore, citizens have right to own and possess the property. Sometimes, this right of individual conflicts with the right of state to self acquired property. A person has a right not to be deprived of his property except through due process of law.

In India, no fundamental right has given rise to so much of litigation than property right between state and individuals. Through the Supreme Court of India sought to expend the scope and ambit of right of property, but it has been progressively curtailed through constitutional amendments. Under the original Constitution Article 19(1)(f) and 31 provides for protection of property right and later they were repealed and Article 300A was inserted. Accordingly no person shall be deprived of his property save by the authority of law.

The notion of property as it has developed over centuries and it has embodies in our legal codes, has become so much a part of us that we tend to take it for granted, and fail to recognize the extent to which just what constitutes property and what rights the ownership of property confers are complex social creations rather than self evident propositions.

Ownership of land and other kind of property provide empowerment, status, income, and security to an individual. Right on land provides the freedom of mortgage, lease out, sell or bequeath. Inheritance on property especially on land inherits on the individual or on joint basis which gives right to use that property to other members of the family.

Under Hindu Law, the law of property has a close relationship with the composition of family.

Humans, however, have constructed the idea of property. A land can belong to an individual or a community and this creates the concept of possessive pronouns, such as mine, yours, his, hers, theirs, and most conflicts happen because of the tensions between what I consider mine and what I consider yours. Thus the idea of property has a close association of our sense of self, our ego.

In modern society, the right to property is a natural law that is essential to human civilisation. Tribal societies usually do not have the right to individual property, there is collective property. Property belongs to a community and not to an individual, but this creates huge issues, especially when people try to buy tribal land and the land belongs to the whole community and not to any particular individual.

Before we move to type of properties, we have to understand concept of properties from its origin. So, its orgin is joint hindu family, what this means. Let’s try and comprehend.

 

JOINT FAMILY PROPERTY UNDER HINDU LAW:

A Hindu joint family consists of the common ancestor and all his lineal male descendants upon any generation together with the wife or wives (or widows) and unmarried daughters of the common ancestor and of the lineal male descendants. The existence of the common ancestor is necessary for bringing a joint family into existence, for its continuance common ancestor is not a necessity.

According to Sir Dinshah Mulla, “A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A daughter ceases to be a member of her father’s family on marriage, and becomes a member of her husband’s family.

A 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. Where there is joint estate, and the members of the family become separate in estate, the family ceases to be joint. Though, mere severance in food and worship does not operate as a separation.

The property of a joint family does not cease to be joint family, if there must be at least two members to constitute Joint Hindu family and it may even consist of female of male. A single male or female cannot make a Hindu joint family even if the assets are purely ancestral.

In Anant v. Shankar it was held that on the death of a sole surviving coparcener, a Hindu Joint Family is not finally terminated so long as it is possible in nature or law to add a male member to it. Thus there can also be a joint family where there are widows only

 

COPARCENARY:

A Hindu coparcenary is a much narrower body that 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.

Coparcenary begins with a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive of such ancestor. The Mitakshara concept of coparcenary is based on the notion of son’s birth right in the joint family property.

Though every coparcenary must have a common ancestor to start with, it is not to be supposed that every extant coparcenary is limited to four degrees from the common ancestor. When a member of a joint family is removed more than four degrees from the last holder, he cannot demand a partition, and therefore he is not a coparcenar. Whenever a break of more than three degrees occurs between any holder of property and the person who claims to enter the coparcenary after his death the line ceases in that direction and the survivorship is confined to those collaterals and descendants who are within the limit of four degrees.

The Supreme Court has summarized the position and observed that the coparcenary property is held in collective ownership by all the coparceners in a quasi-corporate capacity. The incidents of coparcenary are:

• The lineal male descendants of a person upto the third generation, acquire on birth ownership in the ancestral properties of such person;
• Such descendants can at any time work out their rights by asking for partition;
• Till partition each member has got ownership extending over the entire property conjointly enjoyment of the properties is common;
• As a result of such co-ownership the possession and enjoyment of the properties is common;
• No alienation of the property is possible unless it is for necessity, without the concurrence of the coparceners and
• The interest of a deceased member passes on his death to the surviving coparceners.

Every coparcener and every other member of the joint family has a right of maintenance out of the joint family property. The right of maintenance subsists through the life of the member so long as family remains joint. No female can be a coparcener under Mitakshara law. Even wife, though she is entitled to maintenance.

 

Difference between Joint Hindu Family and Coparcener–

• In order to constitute a Joint Hindu family the existence of any kind of property is not required whereas in Coparcenary there is an ancestral property right. 
• Joint Hindu families consist of male and female members of a family whereas in Coparcenary no female can be a coparcener. 
• Coparcenars are members of the Joint Hindu Family whereas all the members of Joint Hindu family are not Coparcenars.

The senior-most member of the Hindu family is known as Karta. The other members of the family are known as Coparcener. The concept of Coparcener has both spiritual and legal aspects. Coparcener is the person who acquires interest on property right from birth. Coparcenary owns the unity, possession and ownership of the title.

The Coparcenary property is divided into Ancestral property and Joint Hindu Property which is not ancestral. Through this article we’ll learn about the ancestral property meaning, the difference between ancestral property and joint family property, what happens when ancestral property right becomes self acquired and so on.

 

JOINT FAMILY PROPERTY:

Under the Mitakshara School, the joint family property devolves by survivorship.

As per section 6 the Hindu Succession Act

When a male Hindu dies after the commencement of this act, having at the time of his death an interest in a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act.

If a member of joint family, acquired property in his own name in the presence of ancestral nucleus, it shall be presumed to be joint family property.

In Mulla’s Principles of Hindu Law, Thirteenth Edition, at page 246, in paragraph 220 classification of the property has been given only as follows:

Classification of property: Property, according to the Hindu Law, may be divided into two classes, namely,

(1) Joint family property, and (2) Separate property.

Joint family property may be divided, according to the source from which it comes, into-

(1) Ancestral property and

(2) Separate property of coparceners thrown into common coparcenary stock.

Property jointly acquired by the members of a joint family with the aid of ancestral property right may or may not be joint property; whether it is so or not is a question of fact in each case.

The term ‘joint family property’ is synonymous with “coparcenary property”.

‘Separate’ property includes ‘self-acquired’ property.

The same was affirmed by the Madras High Court in V . Devaraj vs Jayalakhmi Ammal (Decsd.) &Ors., on 28 February, 1969,

It was further observed in the same judgement that “The Courts of this Country as well as the Privy Council and the recoginsed text-book writers have indiscriminately used the expressions, ‘joint property’, ‘joint family property’, ‘ancestral property’ and ‘coparcenary property’ to denote one and the same property, without intending to make a distinction between the legal incidents depending upon the use of one or other of the expressions.

 

WHAT IS ANCESTRAL PROPERTY (unobstructed heritage):

We often hear people saying that we own an ‘Ancestral Property’ but what does it exactly mean. Though the concept of ancestral property right has been in existence since time immemorial, the term has not been defined in any of the legislations governing the inheritance and succession of property amongst the members of a family. The Courts in India, however, every now and then, have come to rescue, at-least to clarify the position of law with respect to ancestral property in India.

In general view we know that the property which is inherited up to three generations is referred to as ancestral property. This is a part of the coparcenary property. It is the property descends from father, father’s father, and great grandfather.

 

What includes ancestral property:

Any property inherited up to four generations of male lineage is called ancestral property. This property should have remained undivided till the fourth generation upward. Any right to a share in such a property accrues by birth itself.

Further, the rights is ancestral property are determined by per stripes and not per capita. Which means the share of each generation is first determined and the successive generations share in turn is sub-divided. Each generation inherits from its predecessors.

 

What doesn’t included by ancestral property:

• Ancestral property does not include self-acquired property.
• Any property divided through a partition deed, family arrangement etc., loses its ancestral character.
• Properties inherited from mother, grandmother, uncle and even brother is not ancestral property.
• Properties inherited through Will and Gift are not ancestral properties.

If we have to simply understand from the pointers above we can conclude that ancestral property is a species of coparcenary property. As stated above if a Hindu inherits property from his father, it becomes ancestral in his hands as regards his son. It would further connote that whenever an ancestor inherits any property from any of his paternal ancestors up to three generations above him, then his legal heirs up to three generations below him would get an equal right as coparceners in that property.

It is pertinent to mention here that key word of the ancestral property is it should not have been divided by the members of the joint Hindu family. 

As per The Hindu Succession Act, amended in 2005, it now allows women to enjoy equal rights to the property. Now women have the same right as men over the ancestral property. Once the division/ ancestral property partition happens, all members will get an equal share from the property. Further, it was cleared by the Supreme Court the 2005 amendment is not retrospective in nature.

 

SELF ACQUIRED PROPERTY MEANING:

The term ‘property’ though not specified means property of the deceased inheritable under the Hindu Succession Act. It includes both movable and immovable property owned and acquired by inheritance or by demise or at a partition or by gift or by her skill or exertion or by purchase or prescription.

Self Acquired Property Meaning is all property other than joint family or coparcenary property. Even if a hindu is a member of a joint family, he may possess separate property. The term self-acquired indicates that the property has been acquired by a coparcener by his own exertion without assistance of family funds.

Property acquired as legal heir or by a testamentary document as will, property inherent from mother, brother, grandmother property it is self-acquired property.

If a Hindu who is still a member of Joint Hindu Family acquires a property by a Hindu by his exertion or by adverse possession for 12 years is treated as self-acquired property

But most of us are really baffled in regard to term self-acquired property as some ancestral property is considered as self-acquired property. So, the next question is when ancestral property is considered self-acquired property.

When a division or partition happens in a joint Hindu family, then an ancestral property it becomes a self-acquired property in the hands of a family member who has received it.

Self-acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in common.

 

DIFFERENCE BETWEEN ANCESTRAL PROPERTY, JOINT FAMILY PROPERTY AND SELF ACQUIED PROPERTY, MEANING:

Mr. Mayne in paragraph 277 of his book while laying down that property acquired by the members of a joint family by their joint labour, would form their joint property, suggests a doubt as to whether their male issue would by birth alone acquire a right in such property. 

This view was taken by Bombay High Court in Chatturbhooji v. Bharambhi Naranji (1885) I.L.R. 9 Bom. 438, cited by Mr. Mayne. If the joint acquirers intended to hold the property so acquired as co-owners and not as joint family property in the Mitakshara sense of that expression, this view would be perfectly sound. But, if, as supposed, the property was acquired by all the members of the undivided family by their joint labour, it would, in the absence of any indication of intention to the contrary, be owned by them as joint family property and in that case their male issue, who by their birth, become members of such undivided family, necessarily acquire a right by birth in such property.

The other question arises that ancestral property is also birth right then what the difference is.

Where the members of a joint family acquire property by or with the assistance of joint funds or by their joint labour or in their joint business or by a gift or a grant made to them as a joint family, such property, is the coparcenary property of the persons who have acquired it, whether it is an increment to ancestral property, or whether it has arisen without any nucleus of descended property.

I see no difficulty in principle in holding that a member of joint Hindu family who has acquired property of his own may convert it into’ joint family property in the ordinary sense of the term and thereafter that all the members of the family will have the same rights in it as though it had been acquired originally by their exertions or descended to them from a common ancestor.

The Courts in India, however, every now and then, have come to rescue, at-least to clarify the position of law with respect to difference between ancestral property, joint family property and self acquired property.

Commisioner of Wealth Tax, Kanpur & Ors. Vs. Chander Sen & Ors. [(1987) 1 SCR 516] where Sabyasachi Mukharji, J observed that under the Hindu Law, the moment a son is born, he gets a share in father’s property and become 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 separated 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.”

Bhanwar Singh Vs. Puran (2008) 3SCC 87, it was held by Supreme Court that coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with other in inheritance in the estate of common ancestor.

Coparcenary is a narrower body from than the Joint Hindu Family and before commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used acquire by birth an interest in the coparcenary property. a coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that if enlarges by deaths and diminishes by births in the family. It is not static. 

Further, in a Landmark Judgment pronounced by Supreme Court of India in case titled Uttam vs Subagh Singh, Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has re-laid the Law on to the Concept of Ancestral Property.

Apex Court ruled that a conjoint reading of Sections 4, 8 and 19 of the Hindu Succession Act, 1956, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.

In another judgement of Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property/ joint family property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.

Thus, in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.

So, now we got a clear picture with the help of several landmark judgements we can purely conclude that a joint family property cease to exist after 1956. Further we can state that joint family property is synonyms of coparcenary property and ancestral property is the part of joint family property. As joint family property and ancestral property accrues from birth right and self-acquired property can be converted to joint family property or ancestral property.

The two types of property which exist are ancestral and self-acquired as per The Hindu Succession Act.

Some of the differences between ancestral property and self-acquired property are laid down as under:

• On the death of a coparcener, his undivided interest in the joint family property devolves by survivorship, and not by succession, (subject to the provisions of Sections 6 and 30 of the Hindu Succession Act, 1956).
• The children, grandchildren and great-grandchildren of the coparcener acquire an interest in the coparcenary property by birth. But, no other coparcener (not even his own son) acquires any interest by birth, in the separate property of a Hindu.
• A joint family or coparcenary property is liable to be partitioned, whereas there can be no question of partitioning the separate property of a member of a joint Hindu family.
• No coparcener can alienate his undivided interest in a coparcenary by sale or mortgage, without the consent of the other coparceners. Thus, the manager of a Hindu joint family can alienate, by sale or mortgage, a portion (or even the whole) of the joint family property for a legal necessity or for the benefit of the estate, even without the consent of the other coparceners. The separate property of a coparcener can, on the other hand, be freely alienated by him, by way of sale or mortgage, or otherwise.

 

CONCLUSION:

Law relating to blending of separate property with joint family property is well settled. Property separate or self- acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established.

From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support or kindness will not ordinarily be regarded as an admission of a legal obligation.(Lakkireddi Chinna Venkata Reddi vs Lakkireddi Lakshmama,1963 AIR 1601, 1964 SCR (2) 172.)

It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. 

An individual get a share in the ancestral property by birth. In case of self-acquired property, an individual can inherit only on the death of the owner of the property. If the father owns a self-acquired property and also an ancestral property, he has the right to exclude his son/daughter from inheriting his self-acquired property. However, he can’t deny their share in the ancestral property; but the self-acquired property of father inherited by his son it is the ancestral property.

After going through several journals and judgements what I understand that the Hindu succession act, 1956 till today haven’t abolished HUF.

Hindu Succession act, which basically governs with intestate succession till today it recognize the existence of joint Hindu family Mitakshra law. Mulla article 218 define unobstructed heritage when property in which a person has acquired an interest by birth and obstructed heritage property the right to which accrues not by birth but on the death of the last holder.

The eminent point is that the property which devolves on a Hindu on the death of his father intestate after the coming into the force of Hindu succession act, 1956 did not constitute HUF property but according to supreme court judgement mentioned in the above paragraphs HUF properties are abolished due to section 8 of Hindu succession act.

On the other hand the supra judgment also laid down two exceptions

• firstly, HUF property remains continue in case HUF existed and continued before and after 1956 and
• secondly after 1956, a person who owns the self-acquired property throws such property into a common hotchpotch.

Therefore, old concept of joint family property is still to be maintained along with Hindu Succession Act, 1t956.  Most importantly it will be safer to say that the persons who acquire an interest by birth in a joint family property or coparcenary property are sons, grand sons and great grand sons of the holder of the joint property. Sons, grandsons or great grandsons are joint owners/coparceners.

As we have already mentioned above that ancestral property is a species of coparcenary property. If a Hindu acquires coparcenary property from his father, it becomes ancestral in his hands as regards his sons. And when a hindu inherits the self acquired property of his father the sons take a vested interest in the property by reason of their birth and the property inherited by their father would become ancestral property in the hands of the son.

But to sum up our discussion on this topic we can only articulate that the concept of the property matter is vast and complex, no clear distinction has been given till date by the courts on what is ancestral property, joint family property or self acquired property as these can include in each other on the basis of facts and circumstances of cases only. 

 

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