HOW TO GET A CLAIM OVER ANCESTRAL PROPERTY

Introduction

To claim the property as a right, the property must be an ancestral one. Any self-acquired property cannot be claimed as a matter of right. In general, properties are of two kinds, (a) Ancestral property and (b) Self-acquired property. Ancestral property is something that passes onto generations after generations without separation. If one of the parties wants to claim it, they have to divide it amicably or file a suit for partition.

Ancestral Property 

Generally speaking, ancestral property is something that qualifies the following two conditions.

• The property is one which is inherited up to four generations of male lineage.
• The property should not have been partitioned in the last three generations.

Unlike other kinds of inheritance, the right to claim an ancestral property accrues with the act of birth of a person in the family. Once a person is born, he/she has some right over the property, which is their ancestral property. Now, a father (current owner of the ancestral property) and his son/daughter have equal ownership rights over the property. However, the share of each generation is decided first, after which the successive generations have to subdivide the portion inherited from their corresponding predecessor.

So, as we have found it out, a right over a property accrues when the ancestor has died intestate. The legal heirs of a person died intestate are the eligible successor.

Inheritance in India is governed by various personal laws as well as the Indian Succession Act, 1925.

Who can be Legal Heirs?

According to the Hindu Succession (Amendment) Act, 2005, the followings can be legal heirs.

Class I Legal heirs

• Daughter,
• Mother,
• Son,
• Daughter of a son who is deceased
• Daughter of a daughter who is deceased
• Daughter of a predeceased son of a predeceased son
• Widow of a son who is deceased
• Widow of a predeceased son of a predeceased son
• Son of a son who is deceased
• Son of a daughter who is deceased
• Son of a predeceased son of a predeceased son

If no person from class I is available in that legal case heirs from class II will have the inheritance right.

Class II Legal Heirs

The class II group is divided into sub-groups, and these groups will have inheritance rights as a group in descending order. The followings are Class II legal heirs

I

• father
  
  

II

• son’s daughter’s daughter,
• son’s daughter’s son,
• sister,
• brother

III

• daughter’s daughter’s daughter
• daughter’s daughter’s son,
• daughter’s son’s son,
• daughter’s son’s daughter,

IV

• sister’s son,
• sister’s daughter
• brother’s daughter,
• brother’s son,

V

• father’s mother
• father’s father
• father’s widow
• brother’s widow.

VII

• father’s sister
• father’s brother

VIII

• mother’s mother
• mother’s father

IX

• mother’s sister
• mother’s brother

• Inheritance situation is different in case of self-acquired property. In such a case, you can exclude even your son and daughter if you want to. Self-acquired property is something that one buys out of his income, and he has every right to take away your share in such property, but that is not the case for an ancestral property, the share of which is a birthright. The Honourable Delhi High Court in 2016 had given a judgment that an adult son had no legal claim on his parents' self-acquired property. "Where the house is a self-acquired house of the parents, a son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents up to the time the parents allow," said the order.

However, a property inherited from your maternal side, i.e. mother, the maternal grandfather is not your ancestral property.

Son and Daughter Have Equal Rights

With the amendment of 2005, the Hindu Succession Act confers coparcenary rights upon the daughter too. In the present scenario, the daughter has equal rights as a son over the ancestral property. Before the amendment, the Act of 1956 had given right of coparcener only to the male member of the family.

Having the Claim to Property Fulfilled 

The partition of the ancestral property can fulfil the claim to ancestral property. Ancestral property can be partitioned amicably by sending partition notice to all the coparceners or by a partition agreement or declaration for partition. Ancestral property can also be partitioned on contest through arbitration or by instituting a partition suit. Ancestral property is partitioned into equal shares to all the coparceners. Any coparcener, including a daughter, can seek partition of the ancestral property. The moment the ancestral property is partitioned, it would become the self-acquired property of each coparcener.

Conclusion

Though it is always better to look after the property jointly with the assistance of a big family with lots of members, in the present condition and scenario the above-mentioned concept has somewhat become utopian, with everyone looking for his/her benefit only, it is pretty hard to maintain an ancestral property amicably. That is why it is always a better option to have the ancestral property partitioned and enjoy your property without any dispute.