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Author Topic: what is classified as Ancestral Property  (Read 121 times)

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Offline advshelly

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what is classified as Ancestral Property
« on: October 16, 2018, 03:52:04 AM »
Any property acquired by the Hindu great grand father, which then passes undivided down the next three generations up to the present generation of great grand son/daughter.

# This property should be four generation old.

# It should not have been divided by the users in the joint Hindu family as once a division of the property takes place, the share or portion which each Coparcener gets after the division becomes his or her self acquired property.

# The right to a share in ancestral or coparcenary 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. Share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor.

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

Classification of property under Hindu Law

The property under Hindu Law can be classified under two heads:-

Coparcenary property; and
Separate property.
Coparcenary property is again divisible into:-

ancestral property and
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.

Supreme Court Guidlines

The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:-

# When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).

#  To proposition (i) an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.

#  A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.

#  In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property.

#  On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

#  On a conjoint reading of Sections 4, 8 and 19 of the Act, 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.
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Offline kalaskarkk

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Re: what is classified as Ancestral Property
« Reply #1 on: October 16, 2018, 09:03:51 PM »
Dear Sir,

Whether you are asking question or your enlighting the readers.
Regards:

Kishan Dutt Kalaskar
Retd Judge and Advocate
No.74, 1st Floor, “Disley”  House,
Malleswaram, Bengaluru-560003.
Mob: 9686971935, 080-23461189
kalaskarnetra@gmail.com
Call me for clarification

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