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Decoding the Procedure for Partition of an Ancestral Property in Reference to Hindu Succession Act,1956

What is an Ancestral property?

There are some criteria for any property to fall into the ambit of ancestral property. The property must remain in a family for up to four generations of male lineage meaning the property must be acquired by the great Grandfather then passed on to you via your grandfather and father. During this point of passing the property must remain undivided for four generations.

Just in case it get divided due to family partition or the other reason it loses its ancestral nature and become a person's self acquired property. The property of maternal lineage doesn't fall into the ambit of ancestral property. Self Acquired property is that the property that's earned by an individual in its lifetime. The person who has earned this property in his lifetime can willingly turn the self acquired property into Ancestral property.

Rules for partition:

The rules for partition of an ancestral property is governed by Hindu Succession Act, 1956.The concept of the ancestral property is prevalent only among Hindus and according to Hindu Succession Act Hindus is any individual, who could be a [1]Hindu by religion in any of its forms or developments or to anyone who may be a Buddhist, Jaina or Sikh by religion. The proper to inherit ancestral property comes with birth.

Infect consistent with the act a father (current owner of the ancestral property) and his son has equal ownership rights over the property. However, the share of every generation (the father and his siblings) is determined first after which the successive generations need to divide the portions further. The father don't have the right to deprive the son/daughter from the ancestral property, and if the father is doing so then there are provisions that you can legally claim your right to inherit ancestral property. the father doesn't even have the right to sell the property and if he tries to do so then you have the right to stop him. [2]

The Hindu Succession Act was amended in 2005 and the rights of succession of ancestral property were given to both son as well as daughter. Prior to this amendment only son had the right to inherit the property. nobody has the right to deprive daughters from claiming the share in ancestral property. Both son and daughter have the equal share within the property.

According to the Hindu Succession act the categories of heirs are divided into two classes:

[3]Class I heirs include- Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son son of a predeceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son. There are certain rules for the distribution of property among heirs in class I of the Schedule.[4]

Rule 1.-The intestate's widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2.-The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3.-The heirs in the branch of every pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4.-The distribution of the share mentioned in Rule 3:
  1. among the heirs within the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons gets an equivalent portion;
     
  2. among the heirs within the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

Class II heirs include:

Father; Son's daughter's son; son's daughter's daughter; brother; sister; Daughter's son's son; daughter's son's daughter; daughter's son; daughter's daughter; Brother's son; sister's son; brother's daughter; sister's daughter; Father's father; father's mother; Father's widow; brother's widow; Father's brother; father's sister; Mother's father; mother's mother; Mother's brother; mother's sister. The rule for distribution of property among heirs in class II of the Schedule is that The property of an intestate shall be divided between the heirs laid out in anybody entry in class II of the Schedule in order that they, share equally.[5]

There are certain provisions which result in disqualification of inheriting the ancestral property:
  • Anyone who murders or tries to murder any person for the sake of inheriting his property will not be allowed to claim the property.
     
  • Where, before or after the commencement of Hindu Succession Act, a Hindu has ceased or ceases to be a Hindu by conversion to a different religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.[6]
And just in case of disqualification it shall devolve as if such person had died before the intestate and therefore the property will go into the hands of next heir but if the intestate died without any legal heir then the property will move into the hands of government and therefore the Government shall take the property subject to all the obligations and liabilities to which an heir would are subject.

Conclusion: In our country the women were always considered as paraya dhan means someone who is just a guest at her parents place so she don't have the right to claim a part in her parents property but thanks to the 2005 amendment in the Hindu Succession act that gave daughters equal right in her parents property. This step helped in the beginning of equality among the society.

End-Notes:
  1. The Hindu Succession Act, 1956, NO. 30 OF 1956, India
  2. Shaveta Dua, 11 facts about ancestral property you must know, TOI, Nov 17,2017
  3. The Hindu Succession Act, 1956, NO. 30 OF 1956, India
  4. The Hindu Succession (Amendment) Act, No. 39 of 2005, India
  5. Failure of heirs| Hindu Succession Act, 1956|BareActs| Law ... https://www.advocatekhoj.com/library/bareacts/hindusuccession/29.php?Title=Hindu%20Succession%2 0Act,%201956
  6. The Hindu Succession (Amendment) Act, No. 39 of 2005, India

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