CAN ANCESTRAL PROPERTY BE SOLD WITHOUT THE CONSENT OF SUCCESSORS
Author: Garima Kamboj, II year of B.A.,LL.B.(Hons.) from University institute of legal studies, Panjab University, Chandigarh
The word 'Property' has been derived from the Latin word 'Properietat' whose literal meaning is a thing that is owned by someone. It can be passed but cannot be destroyed. The concept of ancestral property is very old in India. According to Hindu law, property can be divided into two parts- Self-acquired property and ancestral property. Self-acquired is any movable or immovable which has been purchased or acquired by sale deed, gift deed, or will of property. No one can claim any legal right over that property. And any undivided property in which four generations of a single family have a share is known as ancestral property. It becomes self–acquired property when it gets divided between the co-parceners.
The property can be called ancestral property if it is inherited by a Hindu by his or her ancestors. The property should have been acquired by Great grandfather and no partition has been done and the property inherited by will and by gift is not considered ancestral property. According to Hindu Succession Act 1956, women were not allowed to inherit property and were unable to claim any right over ancestral property. But now after the amendment, Hindu Succession Amendment Act 2005, daughters whether married or not, can also claim an equal share of ancestral property like sons. Property inherited from mother, Grandmother, Maternal Uncle, and Brother cannot be regarded as ancestral property[i].
The property which is not divided among the new family members during the lifetime of the owner of the property is known as undivided property. But if the property gets divided among the new family members then the property will not be regarded as ancestral property and will become self-acquired property.
TYPES OF ANCESTRAL PROPERTY
PROPERTY INHERITED FROM PATERNAL ANCESTOR
As per Hindu law, the property is inherited from a Hindu male from his father, grandfather, great grandfather, and great-great grandfather[ii]. Property inherited from any other relative will not be considered ancestral property.But after the amendment of 2005 tothe Hindu Succession Act 1956, this property is not confined to the son; the daughter has an equal share of the property as the son.
PROPERTY INHERITED FROM A MATERNAL GRANDFATHER
Under Hindu law, Property from the maternal grandfather is not ancestral property but it will be considered separate property. In the caseof Venkayamma v. Venkataraman Amma[iii], it was held that property from the maternal grandfather after the death of one sibling out of two will be transferred to the living sibling, not to the widow as it is not ancestral property.
PROPERTY ACQUIRED FROM THE GIFT/WILL OF PATERNAL ANCESTOR
If a property is acquired through the gift deed, it can be assumed as self-acquired or ancestral property[iv]. It depends on the intention with which intention the property has been passed. If the condition was made that the inheritor will acquire the property for the benefit of the family then it will be considered ancestral property. If the condition was not made then it will be considered as separate property.
WHO CAN CLAIM ANCESTRAL PROPERTY?
If there is only a sole surviving coparcener, then he/she can acquire the whole property. But in the case of multiple coparceners, he can only claim his/her share over the ancestral property[v]. A coparcener can claim right over the ancestral property by asking for a partition of ancestral property. If the ancestral property is divided through partition then it will lose the character of ancestral property and will attain the status of the self-acquired property. Shareholders will get equally shared ancestral property. After the Hindu Succession Amendment Act, 2005 daughters have also equal rights on the property.
WHO CAN SELL ANCESTRAL PROPERTY?
Since four generations have right over ancestral property, the ancestral property cannot be sold by the decision of one or part owners. The consent should be taken from each shareholder without the consent of these shareholders, the property cannot be sold. All shareholders have the right to seek partition and sale of ancestral property. Any coparcener cannot sell the property for which he/she does not have any right over that share[vi].
CONDITIONS WHEN ANCESTRAL PROPERTY CAN BE SOLD
In the case of Kehar Singh vs. Nachittar Kaur and others[vii], it was held that the Karta of the family can sell the property for the legal necessity of the family. Legal necessity has been defined by the following conditions.
(a) For paying the debts and revenue need to be paid to the government
(b) Payment for the maintenance and the betterment of themembers of the family
(c) For the expenses incurred due to the marriage of coparceners either male or female
(d) For the performance of any funeral or family ceremonies that are deemed to be performed
(e) For recovering and preserving the property, the cost of litigation will be paid by selling the ancestral property
(f) For defending any member of the family against any serious criminal charges
(g) For the payment of debts contracting for the family business or any other business activities.
If any of the above conditions are present, then the Karta of the family can sell ancestral property, it will be considered as his or her right to do so and the other coparcener cannot challenge it. Otherwise, it is necessary to take the consent of each coparcener in selling ancestral property. The coparcener can challenge the sale deed if consent was not obtained.
CAN A FATHER SELL ANCESTRAL PROPERTY WITHOUT THE CONSENT OF HIS SON?
A father can sell ancestral property without the consent of the son if the son is a minor. But if the son is not a minor, then the father cannot sell the ancestral property without his consent. If the son is a minor, then the head of the family can sell the property without his consent.
Ancestral property cannot be sold without the consent of the other coparceners, if sold then coparceners can challenge the sale deed. But there are some conditions also when the Karta of the family can sell the ancestral property for the legal necessity of the family. Daughters have an equal share of the property as other coparceners have. If the property gets divided among the coparceners then it loses the recognition of ancestral property and is regarded as self-acquired property.
[i] Mohammad Hussain Khan v. Babu Kishya Nandan Sahai, 1937 64 I.A. 250 [ii]VineetaSharmav.RakeshSharma&Ors.(2020)AIR3717SC [iii]Venkayamma v. Venkataraman Amma(1902) ILR 25 Mad 678 [iv]C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar and ors. 1954 SCR 243 [v]K.R. Ramachandra Rao v. The Commissioner of wealth tax AIR 1963 Mad 280 [vi]Sukhram & Another vs Gauri Shankar & Anr 1968 AIR 365 [vii]Kehar Singh vs. Nachittar Kaur and others (2018) 14 SCC 445