Do grandchildren have a right to grandfather’s property?

Thinking of leaving your

property behind for your grandchildren? Here’s what you should know.

A grandchild’s right to his or her grandfather’s property depends on the nature of the property
the grandfather has – whether it is self-acquired property or ancestral property.

Ancestral property

Property inherited by a Hindu from his father, grandfather or grandfather’s father, is ancestral
property. Any property that passes undivided down four generations of male lineage is called
ancestral property. The grandson’s right to a share in this property accrues by birth itself.
This is different from other kinds of inheritance, where inheritance opens only on the death of
the owner.

Ancestral property rights are determined on the basis of per stirpes and not per capita.
Therefore, first, each generation’s share is determined and then successive generations sub-
divide what has been inherited by their respective predecessors. In an ancestral property,
grandsons have an equal share on the same.

According to a Supreme Court ruling, a daughter can only claim ancestral property if her
father died after the amendment of the Hindu law. The apex court said that a daughter’s right
to ancestral property does not arise if the father died before this amendment, which came into
force in 2005.

Making a will is one of the best things a senior citizen can do for their loved ones. Here’s a
detailed guide

Self-acquired property
Indian law concerning Hindus is very clear that self-acquired intestate (no will made)
property only of the deceased male/female Hindu is inherited by his/her sons and daughters in
equal proportion along with the surviving spouse. The grandsons or granddaughters have no
right to inherit or claim any share in the property of the grandfather or grandmother if their
own father or mother are alive. The grandchild does not have a birthright on the self-acquired
property of the grandparent. The grandparents can transfer the property to whoever they wish
in a will.

We asked our legal expert Shiv Kumar to shed more light on this and here is what he
had to say: Whether grandchildren have a right to their grandfather’s property
depends upon whether such property is joint family property or the self-acquired
property of the grandfather. If the property is joint family property (HUF property) the
grandchildren would also be entitled to a share depending upon the number of
members or coparceners of such joint family. However, in the case of self-acquired
property of grandfather, no such right vests in any person much less grandchildren to
inherit the grandfather’s property. The grandfather would have absolute rights to
dispose of his property in any manner of his choice, including by Will.
(The above guideline is based on the Hindu Succession Act. There may be some differences in
some states and/or different religions. This guide does not constitute legal advice and is not a
substitute for a lawyer. You may send us a mail with a question to ask our legal expert Shiv
Kumar here.)





 Ancestral Property—Property inherited

from the father by his sons becomes
joint family property in the hands of the
sons
IN THE HIGH COURT OF JUDICATURE AT PATNA

HONOURABLE MR. JUSTICE ADITYA KUMAR

TRIVEDI
First Appeal No.126 of 1980
Date: 16-09-2015

Kapildeo Singh
 Versus
1. Jamuna Singh
Defendant Nos.1 (Siddhi Singh, since deceased) 3, 4 and 7
that means to say branches of Siddhi Singh/appellants have
preferred this appeal against the judgment dated 24.11.1979
and preliminary decree dated 12.12.1979 passed by
Additional Sub Judge- 3rd , Gaya in Partition Suit No.
34/1979/40/1978, decreeing the suit with cost.

2. Plaintiff/respondents no. 1 and 2 filed Partition Suit asking

for identifying their share in the Scheduled property to the
extent of 1/3rd by passing a preliminary decree as well as
carving out a separate Takht to that extent along with
appointment of pleader commissioner for identifying the same
followed with passing of final decree, separate possession,
cost of the suit, any other relief or reliefs for which plaintiff is
entitled for and for that, furnished a genealogical table
wherefrom it is apparent that Shankar Singh common ancestor
of all the branches died leaving behind three sons, Prayag
Singh, Harku Singh and Jaddu Singh. Harku Singh died
issueless before CS survey in jointness with other brothers.
Prayag Singh died leaving behind two sons, Dumri Singh and
Rampati Singh. Dumri Singh also died leaving behind his son
Ambika Singh before CS survey and accordingly, during
course of Cadastral Survey, Khatiyan was prepared in the
name of Jaddu Singh, Ambika Singh and Rampati Singh.
Subsequent to Cadastral Survey, Rampati Singh and Ambika
Singh also died leaving no lineal descendants. Therefore,
Jaddu Singh became sole surviving heir of the joint family.

3. Jaddu Singh died leaving behind two sons Ramlagan Singh

and Kripal Singh. Ramlagan Singh died leaving behind three
sons, Alag Singh, Nand Singh and Girija Singh. Alag Singh
died issueless. Nand Singh died leaving behind one son,
Chandradeo Singh. Chandradeo Singh had two sons, Satyadeo
and Jitendra Singh.

4. Kripal Singh died leaving behind three sons, namely,

Jamuna Singh (Plaintiff No.1), Siddhi Singh (Defendent No.1)
and Tanu Singh (Defendant No.2). Jamuna Singh has one son,
Prahlad Singh (Plaintiff No.2). Siddhi Singh has two sons,
Kapil Deo Singh (Defendant No.3) and Ramadhar Singh
(Defendant No.4). Kapildeo Singh has one son, Kaushal
Kishore Singh (Defendant No.7). Tanu Singh has two sons,
Uma Mahesh Singh (Defendant No.5) and Hardeo Singh
(Defendant No.6). Uma Mahesh Singh has one son, Arvind
Kumar Singh (Defendant No.8) while Hardeo Singh has two
sons, Ashok Kumar Singh (Defendant No.9) and another son's
name is not known. Ramadhar Singh has three daughters, who
were minors at the time of filing of suit. Plaintiff No.2,
Prahlad Singh has one minor daughter on the date of filing of
the suit.

5. It has further been pleaded that apart from ancestral

Khatiyani lands, the decendants of Jaddu Singh also made
subsequent acquisition from joint family funds. Kripal Singh
and Ramlagan Singh partitioned amongst themselves by
metes and bounds about 35 years ago and during course
thereof, they got half share in the ancestral property as well as
in property accumulated by way of acquisition. The lands
detailed under Schedule-1st of the plaint is the property which
Kripal Singh got in his share on partition without having any
concerned with the branches of Ramlagan Singh. It has also
been narrated that after partition, Kripal Singh and his
descendants made acquisition from joint family fund in due
course of time which, Schedule one of the plaint also
discloses.

6. Then it has been submitted that Kripal Singh, being father,

was Karta of the family till his life and after his death, Siddhi
Singh, defendant no.1 substituted Kripal Singh (since
deceased) as Karta of the family and on account thereof,
entered into managing affairs of the joint family in the
background of the fact that Jamuna Singh, plaintiff no.1, was
carrying bad health.
7. It has further been averred that for getting advantage,
Jamabandi was bifurcated and opened in the name of
coparceners of joint family, although, there was no partition
effected in the family nor was severance in the joint family.
The joint family possessed different residential houses,
Gaushala, Dalaan etc.

8. In due course of time Siddhi Singh became hostile towards

plaintiffs and their family and on account thereof, there was
some sort of bickering in the family and to avoid the same,
there was separation in mess followed with demand of
partition by metes and bounds which ultimately was turned
down by the Defendant no.1 and on account thereof,
furnishing other mandatory requirements, paying court-fee,
detailing property under Schedule-1, 2, 2A and further
demarcating shares of respective parties plaintiff/respondent
no.1 & 2 prayed for partition by metes and bounds in a
manner as indicate above.

9. All the defendants appeared before learned lower court and

had filed common written statement wherein it has been
averred that during life time of Kripal Singh, Jamuna Singh
(Plaintiff No.1) began to create nuisance, hurdle in the affairs
of joint family as he became aggrieved over self acquisition
made by Defendant Tanu Singh vide sale deed dated
08.02.1943 from Bachchu Singh and Basant Singh. The
dispute had gone to such an extent that to maintain peace and
harmony in the family, Kripal Singh made family
arrangement in the year 1960-61 wherein Jamuna Singh was
separated and a separate Takht was allotted to him. Under the
aforesaid family arrangement, even some portion of self
acquisition made by Tanu Singh was also allotted to Jamuna
Singh. Schedule-1 of the written statement contains details of
the land allotted to Jamuna Singh.

10. It has further been asserted that Kripal Singh remained

joint with his remaining two sons, Siddhi Singh and Tanu
Singh. After some time, Kripal Singh relinquished his interest
in favour of his sons Siddhi and Tanu who accordingly,
succeeded. Because of the fact that Siddhi Singh was elder
brother, he became Karta of the family and began to look after
all the affairs of the joint family.

11. It has further been submitted that during course of

revisional survey, plaintiffs have categorically admitted the
theme of partition though, with an ulterior motive claimed that
the partition having effected in the year 1964, shortening the
same. The aforesaid event has purposely been introduced by
the plaintiff in the background of the fact that plaintiff no.2,
Prahlad Singh is a practising Advocate and further, known to
the intricacies of law. Furthermore, the aforesaid event has
purposely been introduced as, after partition, defendants have
made self acquisition by way of different sale deeds as well as
Rehan (mortgage). Some lands have also been kept under
mortgage by Siddhi Singh for the welfare of joint family. Self
acquisition has been detailed under Schedule-2 of the WS
regarding which much stress has been laid down to be the
exclusive property to the defendants with which plaintiffs got
no concern at all.

12. In order to divulge the source, it has been disclosed that

Tanu Singh was doing business at Dhanbad and was engaged
in preparation and sale of "Pera" by which he got sufficient
earnings. It has also been submitted that in pursuance of
partition, defendants are independently paying rent and are in
possession of rent receipt.

13. It has also been submitted that Siddhi Singh, being Karta
of the family, had exchanged the land with one Rajdeo Singh
vide registered deed dated 22.06.1971. It has also been
submitted that in the facts and circumstances of the case, there
is no unity of title nor possession between the plaintiff and
defendant with regard to properties as detailed under plaint.
14. It has further been submitted that the details of the
properties under Schedule of the plaint are vague, wrong more
particularly, in the background of the fact that plaintiff for
their own conveniences have brought up story of oral partition
amongst family of Ramlagan and Kripal Singh without any
proper evidence and on account thereof, the aforesaid theme is
to be taken note of whereupon presence of Ramlagan Singh's
family in the present proceeding has become necessary being
a necessary party.

15. It has also been submitted that during course of jointness

of the family, there was no sufficient savings which could
have justified acquisition rather it was the income from
business carried out by Tanu Singh which yielded sufficient
savings and on the basis thereof, self acquisition was made.
Accordingly, denying the averments made under suit has
prayed for dismissal of the same.

16. After perusing the pleadings of the respective parties, the

learned lower court had framed the following issues deciding
issues no.3 and 4 as major issues in favour of
respondents/plaintiffs resulting decree of the suit, hence this
appeal :-

Issues framed by the learned lower court are as follows:-

1. Is the suit as framed maintainable ?
2. Have the plaintiffs get valid cause of action for the suit ?
3. Whether there is unity of title and possession between the parties in respect
of suit properties ?
4. Are the plaintiffs entitled to get a decree for partition as claimed ?
5. To what relief or reliefs, if any are the plaintiffs entitled ?

17. Learned counsel for the defendant/appellant while

assailing judgment impugned has submitted that finding
recorded by the learned lower court is not at all maintainable.
The first and foremost, argument has been raised over relating
to self acquisition. It has been submitted that Mulla has
recognized self acquisition even by a coparcener and it
remains personal property of a coparcener till he throws it in
common stock. Simultaneously, it has also been submitted
that whenever document stands in the name of an individual,
then in that event, the adversary who intends to have share in
the aforesaid property, will have to prove by sufficient
evidence that acquisition was made from joint family nucleus.
In the present case, the document happens to be in the name
of Tanu Singh. There happens to be specific disclosure that
Tanu Singh was carrying "Pera" business at Dhanbad and on
account thereof, it was burden upon plaintiff to prove by
cogent evidence that it was not from personal savings of Tanu
Singh rather acquisition was from joint family fund. Virtually,
plaintiff-respondent failed to substantiate the same.
18. It has also been submitted that there happens to be own
admission on the part of plaintiff/respondent that in due
course of time there was bifurcation of Jamabandi. Although,
some sort of explanation had been furnished but never
substantiated and on account thereof, adverse inference could
be drawn against plaintiff.

19. In its continuity, it has also been submitted that Siddhi

Singh, for the benefit of joint family consisting of other
defendant TanuSingh, after separation had executed
usufructuary mortgage in favour of different persons as well
as had taken usufructuary mortgage from different persons.
Not only this, he had also entered into an exchange under
registered deed which substantiated the theme of partition.
Once found duly surfaced, then in that event, the finding
recorded by the learned lower court is found nullified.

20. It has further been submitted that Jamuna Singh, the

reason best known to him, did not chose to come in dock and
instead of him Prahlad Singh, plaintiff no.2 had turned up as
PW-7. From his evidence, it is evident that he himself had
completely smashed his own pleading and on account thereof,
the learned lower court should have dismissed the suit instead
of allowing the same. Hence, it has been submitted that the
judgment impugned is fit to be set aside.

21. While supporting the finding recorded by the learned

lower court, it has been submitted on behalf of
plaintiff/respondent that the instant appeal is not maintainable
on facts as well as on law.

22. To buttress such plea, it has been submitted that

presumption regarding jointness of Hindu Family is a rule and
on account thereof, the person who controverts the same
shares burden to prove. From the evidence available on the
record, it is apparent that appellant/defendants have not been
able to substantiate their plea by cogent and reliable evidence
that there was partition in the family by metes and bounds.
Therefore, assertion of the defendant/appellant has got no
legal force.

23. Furthermore, it has also been submitted that when family

was in jointness, acknowledging status of Siddhi Singh as
Karta of the family which, defendant/appellant have also
endorsed along with the fact that acquisition was made during
subsistence of joint family, again cast burden upon the person
who pleads self acquisition. On this score, it has also been
submitted that neither Tanu Singh nor his sons came forward
to depose and in likewise manner, they have joined hand as
appellant rather arrayed as respondent which suggest that plea
of self acquisition by TanuSingh happens to be imaginary
strong only to infringe interest of plaintiff/respondent. Then in
that event, the plea of defendant/appellant melted down like
anything, hence the learned lower court rightly acknowledged
the claim of the plaintiff/respondent and decreed the suit.

24. After hearing the parities, going through the records, for
better appreciation of facts as well as law involved in this
appeal following points are formulated:-

1. Is the suit as framed maintainable?

2. Have the plaintiffs get valid cause of action for the suit?
3. Whether there is unity of title and possession between the parties in respect of
suit properties?
4. Are the plaintiffs entitled to get a decree for partition as claimed?
5. To what relief or reliefs, if any are the plaintiffs entitled?

25. Both the parties have adduced oral as well as documentary

evidence. On behalf of plaintiff/respondent altogether seven
PWs have been examined out of whom PW-1, Ram Janam
Singh, PW-2, Naresh Singh, PW-3, Hari Shankar Tiwari, PW-
4, Ashok Kumar Sinha, PW-5, Bajrangi Sinha, PW-6, Jagdish
Singh and PW-7, Prahlad Singh. Defendant/appellants have
examined altogether 26 DWs out of whom DW-1, Lala
Maheshwari, DW-2, Lala Ram Chandra Prasad, DW-3,
Bindeshwari Pd. DW-4, Shivdani Lal, DW-5, Lalan Pd, DW-
6, Tapeshwar Singh, DW-7, Sadhu Sharan Singh, DW- 8,
Saroj Kumar Verma, DW-9, Madhusudan Pd. DW-10,
Shivnandan Tiwari, DW-11, Subedar Singh, DW-12, Gauri
Shankar Singh, DW- 13, Baidnath Mishra, DW-14, Ram
Naresh Singh, DW-15, Krishna Mohan Prasad, DW-16,
Basudeo Prasad, DW-17, Shambhu Nath Pd, DW-18, Badri
Yadav, DW-19, Maksudan Singh, DW-20, Lodhi Singh, DW-
21, Ganesh Prasad, DW-22, Achyuta Nand, DW-23,
Shivdayal Singh, DW-24, Kapildeo Singh, DW-25, Rajnand
Lala and DW-26, Md. Masood Alam Malik.

26. Side by side the respective parties have also exhibited

documentary evidence. On behalf of plaintiff/defendant, Ext-
1, 1/A, Rehan deed dated 24.09. 69 as well as 15.05.1967
respectively, Ext-2 C.C. of deposition of Hardeo, Ext-3,
original Khatiyan of village Main, Ext-3A, C.C. of Khatiyan,
Ext-3/D, C.C.of old khatiyan, Ext- 3/C, Original Khatiyan,
Ext-4 , 4/C, R.S. Map.

27. On behalf of defendant/appellant, Ext-A, original sale

deed 27.06.1973 executed by Chandradeo Tiwari in favour of
Siddhi Singh, A/1, original sale deed dated 27.06.1973
executed by Chandradeo Tiwari in favour of Tanu Singh, A/2,
original sale deed dated 08.02.1943 executed by Bachchu
Singh in favour of Tanu Singh, Ext-B, rent receipt, Ext-C,
original mortgage dated 28.06.1972 executed by Sadhu
Sharan Singh in favour of Siddhi Singh, Ext-D series, form
filled up under the banner of 103A of BT Act, Ext-E, E/1,
deed of exchange dated 22.06.1971 in between Rajdeo Singh
and Siddhi Singh, Siddhi Singh and Rajdeo Singh, Ext-F,
handwriting and signature of Sheopujan Sahay over document
dated 29.06.1973 (Siddhi Singh v. Ram Janam Yadav), Ext-
F/1, script and signature of Ramanand Singh over document
dated 29.06.1973, Ext-G, Ration Card, Ext-F/2, signature of
members over Ration Card, distribution book, Ext-H series,
Chaukidari Rashid, Ext-I, report submitted by Advocate
Commissioner.

28. Point No.3 and 4 are taken together as these points are the
backbone of instant appeal. The nature of suit relates with
claim of partition of the property possessed by the joint Hindu
family comprising ancestral as well as property subsequently
acquired which has been controverted by the
defendant/appellant on the ground of previous partition as
well as self acquisition, on account thereof, the fundamental
rule of joint Hindu family, acquisition, burden, onus is to be
first dealt with. Mulla in principles of Hindu Law has dealt
with the issue independently and the relevant articles are
quoted below. Before that, the salient feature of the matter
under controversy is to be taken note of.

29. From the pleadings of the respective parties, it is apparent

that genealogical table is out of controversy and in likewise
manner the status of family. That means to say, the dispute is
now confined relating to lineal descendant of Kripal Singh
(since deceased) who died leaving behind three sons, Jamuna
Singh, Siddhi Singh and Tanu Singh. Family of Jamuna Singh
is the plaintiff/respondent while family of Siddhi Singh and
Tanu Singh were defendant before the learned lower court out
of whom, the branches of Siddhi Singh appealed arraying the
branches of Tanu Singh as Respondent 2nd set including
plaintiffs as respondent 1st set. According to pleadings of the
plaintiff/respondent, Kripal singh died in jointness, Siddhi
Singh was the manager of the joint family, subsequent
acquisition were made from joint family fund and on the basis
thereof, claimed 1/3rd share in the property so detailed under
different schedule while controverting the same, it happens to
be a pleading of defendant/appellant that Jamuna Singh began
to raise hue and cry over self acquisition by Tanu Singh in the
year 1943 and on account thereof, his presence was found
obnoxious to the joint family, consequent thereupon, Kripal
Singh got him separated and further to avoid the bickering in
the family, gave some portion of land which was self
acquisition of Tanu Singh. The subsequent acquisition
happens to be the exclusive property of Tanu Singh who was
a "Pera" vendor at Dhanbad and earned a lot therefrom.

30. Article 212 of Principle of Hindu Law by Mulla identifies

joint Hindu Family and suggests constitution of joint Hindu
Family consisting of all persons lineally descendants from
common ancestor and includes their wife and unmarried
daughters. It has further been held that joint and undivided
family is the normal condition of Hindu Family. It further
speaks that the existence of joint estate is not an essential
requisite to constitute a joint family and further mere
severance in food and worship does not operate as separation.
Then there happens to be persons of coparcenery and has been
identified as who acquires by birth and interest in the joint or
coparcenery property. With regard to formation of coparcener,
Article 214 suggests a common male ancestor with his lineal
descendant in the male line within four degrees counting from
an inclusion of such ancestor. However, is not a strict rule in
terms of Article 215.

31. As per Article 220, there happens to be two kinds of

properties (1), joint family property, (2) separate property,
however it has been made clear that property acquired by the
members of joint family with the aid of ancestral property is
joint family property while the acquisition without aid of joint
family property happens to be separate or self acquired.
Article 222 deals with separate or self acquired property and
after going through the same, it is apparent that a Hindu, even
after joint may possess separate property which belongs to
him exclusively having no title interest of the other
coparcener while other property happens to be ancestral
property, joint family property identified under Article 223.
Article 227 speaks about the eventualities wherein self
acquired properties can be treated as joint family property at
the instance of person who had acquired the same. Article 233
deals with presumption regarding status of coparcener's as
well as coparcenery property and further when a dispute has
arisen over partition of the properties including ancestral
property as well as self acquired property having version,
counter version, the same has elaborately been dealt with
identifying the following characters.

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Landmark Judgement(SC):Suit for
partition and separate possession

rick john Posted 10 Jul 2017

Landmark Judgement(SC):Suit
for partition and separate
possession
Shub Karan Bubna @ Shub Karan Prasad Bubna

Petitioner

Vs.

Sita Saran Bubna & Ors.

Respondents

ORDER R. V. RAVEENDRAN, J.

1.The first respondent and his mother filed a suit for partition against petitioner and two
others in the year 1960 in the court of the First Additional Judge, Muzaffarnagar, for partition
and separate possession of their one-third share in the plaint schedule properties and for
rendition of accounts. The suit was in respect of three non-agricultural plots and some
movables. After contest the suit was decreed on 25.2.1964 directing a preliminary decree for
partition be drawn in regard to the one-third share of the plaintiffs in the said plots and a final
decree be drawn up through appointment of a Commissioner for actual division of the plots
by metes and bounds.

2. Feeling aggrieved the petitioner (and others) filed an appeal before the Patna High Court
which was dismissed on 29.3.1974. The first respondent filed an application on 1.5.1987 for
drawing up a final decree. The petitioner filed an application on 15.4.1991 to drop the final
decree proceedings as it was barred by limitation. The said application was dismissed by the
trial court holding that once the rights/shares of the plaintiff had been finally determined by a
preliminary decree, there is no limitation for an application for affecting the actual
partition/division in accordance with the preliminary decree, as it should be considered to be
an application made in a pending suit. The said order was challenged by the petitioner in a
revision petition which was dismissed by the High Court order dated 15.1.2009. The
petitioner has filed this special leave petition seeking leave to appeal against the said decision
of the High Court.

3. The appellant contends that when a preliminary decree is passed in a

partition suit, a right enures to the plaintiff to apply for a final decree for
division of the suit property by metes and bounds; that whenever an
application is made to enforce a right or seeking any relief, such application is
governed by the law of limitation; that an application for drawing up a final
decree would be governed by the residuary Article 137 of Limitation Act,
1963 (`Act' for short) which provides a period of limitation of three years; that
as such right to apply accrues on the date of the preliminary decree, any
application filed beyond three years from the date of preliminary decree (that
is 12.3.1964) or at all events beyond three years from the date when the High
Court dismissed the defendant's appeal (that is 29.3.1974) would be barred by
limitation. Reliance was placed by the petitioner on the decision of this Court
in Sital Parshad v. Kishori Lal [AIR 1967 SC 1236], the decision of the Privy
Council in Saiyid Jowad Hussain v. Gendan Singh [AIR 1926 PC 93] and a
decision of the Patna High Court in Thakur Pandey v. Bundi Ojha [AIR 1981
Patna 27] in support of his contention.

The issue:

4. `Partition' is a re-distribution or adjustment of pre-existing rights, among

co-owners/coparceners, resulting in a division of lands or other properties
jointly held by them, into different lots or portions and delivery thereof to the
respective allottees. The effect of such division is that the joint ownership is
terminated and the respective shares vest in them in severalty. A partition of a
property can be only among those having a share or interest in it. A person
who does not have a share in such property cannot obviously be a party to a
partition. `Separation of share' is a species of 'partition'. When all co-owners
get separated, it is a partition. Separation of share/s refers to a division where
only one or only a few among several co-owners/coparceners get separated,
and others continue to be joint or continue to hold the remaining property
jointly without division by metes and bounds. For example, where four
brothers owning a property divide it among themselves by metes and bounds,
it is a partition. But if only one brother wants to get his share separated and
other three brothers continue to remain joint, there is only a separation of the
share of one brother. In a suit for partition or separation of a share, the prayer
is not only for declaration of plaintiff's share in the suit properties, but also
division of his share by metes and bounds. This involves three issues: (i)
whether the person seeking division has a share or interest in the suit
property/properties; (ii) whether he is entitled to the relief of division and
separate possession; and (iii) how and in what manner, the property/properties
should be divided by metes and bounds?

5. In a suit is for partition or separation of a share, the court at the first stage
decides whether the plaintiff has a share in the suit property and whether he is
entitled to division and separate possession. The decision on these two issues
is exercise of a judicial function and results in first stage decision termed as
`decree' under Order 20 Rule 18(1) and termed as `preliminary decree' under
Order 20 Rule 18(2) of the Code. The consequential division by metes and
bounds, considered to be a ministerial or administrative act requiring the
physical inspection, measurements, calculations and considering various
permutations/ combinations/alternatives of division is referred to the Collector
under Rule 18(1) and is the subject matter of the final decree under Rule
18(2). The question is whether the provisions of Limitation Act are
inapplicable to an application for drawing up a final decree.

6. Rule 18 of Order 20 of the Code of Civil Procedure (`Code' for short) deals
with decrees in suits for partition or separate possession of a share therein
which is extracted below:

"18. Decree in suit for partition of property or separate possession of a share

therein.-- Where the Court passes a decree for the partition of property or for
the separate possession of a share therein, then, --

(1) if and in so far as the decree relates to an estate assessed to the payment of
revenue to the Government, the decree shall declare the rights of the several
parties interested in the property, but shall direct such partition or separation to
be made by the Collector, or any gazetted subordinate of the Collector deputed
by him in this behalf, in accordance with such declaration and with the
provisions of section 54;

(2) if and in so far as such decree relates to any other immovable property or
to movable property, the Court may, if the partition or separation cannot be
conveniently made without further inquiry, pass a preliminary decree
declaring the rights of the several parties, interested in the property and giving
such further directions as may be required."

The terms 'preliminary decree' and 'final decree' used in the said rule are
defined in Explanation to section 2(2) of the Code and reads thus :
"A decree is preliminary when further proceedings have to be taken before the
suit can be completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly preliminary and partly final."

Section 54 of the Code dealing with partition of estate or separation of share,

relevant for purposes of Rule 18(1) reads thus:

"Where the decree is for the partition of an undivided estate assessed to the
payment of revenue of the government, or for the separate possession of a
share of such an estate, the partition of the estate or the separation of the share
shall be made by the Collector or any gazetted sub-ordinate of the Collector
deputed by him in this behalf, in accordance with the law (if any) for the time
being in force relating to the partition, or the separate possession of shares, of
such estates."

Rule 13 of Order 26 of the Code dealing with Commissions to make partition

of immovable property, relevant for purposes of Rule 18(2) reads thus :

"Where a preliminary decree for partition has been passed, the Court may, in
any case not provided for by section 54, issue a commission to such person as
it thinks fit to make the partition or separation according to the rights as
declared in such decree."

7. We may now turn to the provisions of the Limitation Act, 1963. Section 3
of the Act provides that subject tosections 4 to 24, every suit instituted, appeal
preferred and application made after the prescribed period shall be dismissed.
The term 'period of limitation' is defined as the period of limitation prescribed
for any suit, appeal or application by the Schedule to the Act (vide clause (j) of
section 2 of the Act). The term "prescribed period" is defined as the period of
limitation computed in accordance with the provisions of the said Act. The
Third Division of the Schedule to the said Act prescribes the periods of
limitation for Applications. The Schedule does not contain any Article
prescribing the limitation for an application for drawing up of a final decree.
Article 136 prescribes the limitation for execution of any decree or order of
civil court as 12 years when the decree or order becomes enforceable. Article
137 provides that for any other application for which no period of limitation is
provided elsewhere in that division, the period of limitation is three years
which would begin to run from the time when the right to apply accrues. It is
thus clear that every application which seeks to enforce a right or seeks a
remedy or relief on the basis of any cause of action in a civil court, unless
otherwise provided, will be subject to the law of limitation. But where an
application does not invoke the jurisdiction of the court to grant any fresh
relief based on a new cause of action, but merely reminds or requests the court
to do its duty by completing the remaining part of the pending suit, there is no
question of any limitation. Such an application in a suit which is already
pending, which contains no fresh or new prayer for relief is not one to which
Limitation Act, 1963 would apply. These principles are evident from the
provisions of the Code and the Limitation Act and also settled by a series of
judgments of different High Court over the decades
8. Once a court passes a preliminary decree, it is the duty of the court to ensure
that the matter is referred to the Collector or a Commissioner for division
unless the parties themselves agree as to the manner of division. This duty in
the normal course has to be performed by the court itself as a continuation of
the preliminary decree. Sometimes either on account of the pendency of an
appeal or other circumstances, the court passes the decree under Rule 18(1) or
a preliminary decree under Rule 18(2) and the matter goes into storage to be
revived only when an application is made by any of the parties, drawing its
attention to the pending issue and the need for referring the matter either to the
Collector or a Commissioner for actual division of the property. Be that as it
may.

9. The following principles emerge from the above discussion regarding

partition suits :

9.1) In regard to estates assessed to payment of revenue to the government

(agricultural land), the court is required to pass only one decree declaring the
rights of several parties interested in the suit property with a direction to the
Collector (or his subordinate) to effect actual partition or separation in
accordance with the declaration made by the court in regard to the shares of
various parties and deliver the respective portions to them, in accordance with
section 54 of Code. Such entrustment to the Collector under law was for two
reasons. First is that Revenue Authorities are more conversant with matters
relating to agricultural lands. Second is to safeguard the interests of
government in regard to revenue. (The second reason, which was very
important in the 19th century and early 20th century when the Code was made,
has now virtually lost its relevance, as revenue from agricultural lands is
negligible). Where the Collector acts in terms of the decree, the matter does
not come back to the court at all. The court will not interfere with the
partitions by the Collector, except to the extent of any complaint of a third
party affected thereby.

9.2) In regard to immovable properties (other than agricultural lands paying

land revenue), that is buildings, plots etc. or movable properties:

(i) where the court can conveniently and without further enquiry make the
division without the assistance of any Commissioner, or where parties agree
upon the manner of division, the court will pass a single decree comprising the
preliminary decree declaring the rights of several parties and also a final
decree dividing the suit properties by metes and bounds.

(ii) where the division by metes and bounds cannot be made without further
inquiry, the court will pass a preliminary decree declaring the rights of the
parties interested in the property and give further directions as may be required
to effect the division. In such cases, normally a Commissioner is appointed
(usually an Engineer, Draughtsman, Architect, or Lawyer) to physically
examine the property to be divided and suggest the manner of division. The
court then hears the parties on the report, and passes a final decree for division
by metes and bounds.
The function of making a partition or separation according to the rights
declared by the preliminary decree, (in regard to non-agricultural immovable
properties and movables) is entrusted to a Commissioner, as it involves
inspection of the property and examination of various alternatives with
reference to practical utility and site conditions. When the Commissioner
gives his report as to the manner of division, the proposals contained in the
report are considered by the court; and after hearing objections to the report, if
any, the court passes a final decree whereby the relief sought in the suit is
granted by separating the property by metes and bounds. It is also possible that
if the property is incapable of proper division, the court may direct sale thereof
and distribution of the proceeds as per the shares declared.

9.3) As the declaration of rights or shares is only the first stage in a suit for
partition, a preliminary decree does not have the effect of disposing of the suit.
The suit continues to be pending until partition, that is division by metes and
bounds, takes place by passing a final decree. An application requesting the
court to take necessary steps to draw up a final decree effecting a division in
terms of the preliminary decree, is neither an application for execution (falling
under Article 136 of the Limitation Act) nor an application seeking a fresh
relief (falling underArticle 137 of Limitation Act). It is only a reminder to the
court to do its duty to appoint a Commissioner, get a report, and draw a final
decree in the pending suit so that the suit is taken to its logical conclusion.

10. The three decisions relied on by the petitioner (referred to in para 3 above)
are not relevant for deciding the issue arising in this case. They all relate to
suits for mortgage and not partition. There is a fundamental difference
between mortgage suits and partition suits. In a preliminary decree in a
mortgage suit (whether a decree for foreclosure under Rule 2 or a decree for
sale under Rule 4 of Order 34 of the Code), the amount due is determined and
declared and the time within which the amount has to be paid is also fixed and
the consequence of non payment within the time stipulated is also specified. A
preliminary decree in a mortgage suit decides all the issues and what is left out
is only the action to be taken in the event of non payment of the amount.
When the amount is not paid the plaintiff gets a right to seek a final decree for
foreclosure or for sale. On the other hand, in a partition suit the preliminary
decrees only decide a part of the suit and therefore an application for passing a
final decree is only an application in a pending suit, seeking further progress.
In partition suits, there can be a preliminary decree followed by a final decree,
or there can be a decree which is a combination of preliminary decree and
final decree or there can be merely a single decree with certain further steps to
be taken by the court. In fact several applications for final decree are
permissible in a partition suit. A decree in a partition suit enures to the benefit
of all the co-owners and therefore, it is sometimes said that there is really no
judgment-debtor in a partition decree. A preliminary decree for partition only
identifies the properties to be subjected to partition, defines and declares the
shares/rights of the parties. That part of the prayer relating to actual division
by metes and bounds and allotment is left for being completed under the final
decree proceedings. Thus the application for final decree as and when made is
considered to be an application in a pending suit for granting the relief of
division by metes and bounds. Therefore, the concept of final decree in a
partition suit is different from the concept of final decree in a mortgage suit.
Consequently an application for a final decree in a mortgage suit is different
from an application for final decree in partition suits. A suggestion for debate
and legislative action

11. The century old civil procedure contemplates judgments, decrees,

preliminary decrees and final decrees and execution of decrees. They provide
for a `pause' between a decree and execution. A 'pause' has also developed by
practice between a preliminary decree and a final decree. The `pause' is to
enable the defendant to voluntarily comply with the decree or declaration
contained in the preliminary decree. The ground reality is that defendants
normally do not comply with decrees without the pursuance of an execution.
In very few cases, the defendants in a partition suit, voluntarily divide the
property on the passing of a preliminary decree. In very few cases, defendants
in money suits, pay the decretal amount as per the decrees. Consequently, it is
necessary to go to the second stage that is levy of execution, or applications
for final decree followed by levy of execution in almost all cases.

12. A litigant coming to court seeking relief is not interested in receiving a

paper decree, when he succeeds in establishing his case. What he wants is
relief. If it is a suit for money, he wants the money. If it is a suit for property,
he wants the property. He naturally wonders why when he files a suit for
recovery of money, he should first engage a lawyer and obtain a decree and
then again engage a lawyer and execute the decree. Similarly, when he files a
suit for partition, he wonders why he has to first secure a preliminary decree,
then file an application and obtain a final decree and then file an execution to
get the actual relief. The common-sensical query is: why not a continuous
process? The litigant is perplexed as to why when a money decree is passed,
the court does not fix the date for payment and if it is not paid, proceed with
the execution; when a preliminary decree is passed in a partition suit, why the
court does not forthwith fix a date for appointment of a Commissioner for
division and make a final decree and deliver actual possession of his separated
share. Why is it necessary for him to remind the court and approach the court
at different stages?

13. Because of the artificial division of suits into preliminary decree

proceedings, final decree proceedings and execution proceedings, many Trial
judges tend to believe that adjudication of the right being the judicial function,
they should concentrate on that part. Consequently, adequate importance is not
given to the final decree proceedings and execution proceedings which are
considered to be ministerial functions. The focus is on disposing of cases,
rather than ensuring that the litigant gets the relief. But the focus should not
only be on early disposal of cases, but also on early and easy securement of
relief for which the party approaches the court. Even among lawyers,
importance is given only to securing of a decree, not securing of relief. Many
lawyers in India handle suits only till preliminary decree is made, then hand it
over to their juniors to conduct the final decree proceedings and then give it to
their clerks for conducting the execution proceedings. Many a time, a party
exhausts his finances and energy by the time he secures the preliminary decree
and has neither the capacity nor the energy to pursue the matter to get the final
relief. As a consequence, we have found cases where a suit is decreed or a
preliminary decree is granted within a year or two, the final decree proceeding
and execution takes decades for completion. This is an area which contributes
to considerable delay and consequential loss of credibility of the civil justice
system. Courts and Lawyers should give as much importance to final decree
proceedings and executions, as they give to the main suits.

14. In the present system, when preliminary decree for partition is passed,
there is no guarantee that the plaintiff will see the fruits of the decree. The
proverbial observation by the Privy Council is that the difficulties of a litigant
begin when he obtains a decree. It is necessary to remember that success in a
suit means nothing to a party unless he gets the relief. Therefore to be really
meaningful and efficient, the scheme of the Code should enable a party not
only to get a decree quickly, but also to get the relief quickly. This requires a
conceptual change regarding civil litigation, so that the emphasis is not only
on disposal of suits, but also on securing relief to the litigant. We hope that the
Law Commission and Parliament will bestow their attention on this issue and
make appropriate recommendations/amendments so that the suit will be a
continuous process from the stage of its initiation to the stage of securing
actual relief. The present system involving a proceeding for declaration of the
right, a separate proceeding for quantification or ascertainment of relief, and
another separate proceeding for enforcement of the decree to secure the relief,
is outmoded and unsuited for present requirements. If there is a practice of
assigning separate numbers for final decree proceedings that should be
avoided. Issuing fresh notices to the defendants at each stage should also be
avoided. The Code of Civil Procedure should provide for acontinuous and
seamless process from the stage of filing of suit to the stage of getting relief.
In money suits and other suits requiring a single decree, the process of suit
should be a continuous process consisting of the first stage relating to
determination of liability and then the second stage of execution and recovery,
without any pause or stop or need for the plaintiff to initiate a separate
proceedings for execution. In suits for partition and other suits involving
declaration of the right and ascertainment/quantification of the relief, the
process of the suit should be continuous, consisting of the first stage of
determination and declaration of the right, second stage of
ascertainment/division/quantification, and the third stage of execution to give
actual relief.

Conclusion

15. In so far final decree proceedings are concerned, we see no reason for even
legislative intervention. As the provisions of the Code stand at present,
initiation of final decree proceedings does not depend upon an application for
final decree for initiation (unless the local amendments require the same). As
noticed above, the Code does not contemplate filing an application for final
decree. Therefore, when a preliminary decree is passed in a partition suit, the
proceedings should be continued by fixing dates for further proceedings till a
final decree is passed. It is the duty and function of the court. Performance of
such function does not require a reminder or nudge from the litigant. The
mindset should be to expedite the process of dispute resolution.
 16. In view of the foregoing, we are of the view that the application filed by
the plaintiff in this case for drawing up of a final decree, was rightly held to be
not subject to any period of limitation. We therefore dismiss this special leave
petition as having no merit, with a request to expedite the final decree
proceedings.

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Concepts of Ancestral Property

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March,3,2016: In a Landmark Judgment pronounced by Supreme Court of India yesterday in
case titled Uttam vs Subagh Singh, Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has
relaid 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.

The suit was filed by a Son for partition, in Devas, Madhya Pradesh, against his father and his
father’s three brothers. He claimed a 1/8th share in the suit property on the footing that the
suit property was ancestral property, and that, being a coparcener, he had a right by birth in
the said property in accordance with the Mitakshara Law. It was ruled by SC that on the date
of the birth of the appellant in 1977 the said ancestral property, not being joint family
property, the suit for partition of such property would not be maintainable.

Concept of Ancestral Property

Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is
ancestral property.

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.

In Mulla’s Principles of Hindu Law (15th Edition), it is stated at page 289:

“………. if A inherits property, whether movable or immovable, from his father or father’s
father, or father’s father’s father, it is ancestral property as regards his male issue. If A has no
son, son’s son, or son’s son’s son in existence at the time when he inherits the property, he
holds the property as absolute owner thereof, and he can deal with it as he pleases ………. A
person inheriting property from his three immediate paternal ancestors holds it, and must hold
it, in coparcenary with his sons, sons’ sons and sons’ sons’ sons’ but as regards other
relations he holds it and is entitled to hold it, as his absolute property.”

In case titled Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others,
(1986) 3 SCC 567, it was held that after passing of the Hindu Succession Act, 1956 the
traditional view that on inheritance of an immovable property from paternal ancestors up to
three degrees, automatically an HUF came into existence, no longer remained the legal
position in view of Section 8 of the Hindu Succession Act, 1956.

This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter
followed by the 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 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, an Classification of property under Hindu Law only in such a case,
members of such joint Hindu family are coparceners entitling them to a share in the HUF
properties.

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.

Law laid by Delhi High Court

In case titled Surender Kumar vs Dhani Ram CS (OS) No.1737/2012 decided on 18th
January, 2016 Hon’ble Mr. J. Valmiki Mehta of Delhi High Court ruled-

(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF
existing at the time of the death of such a person, inheritance of an immovable property of
such a person by his successors-in-interest is no doubt inheritance of an ‘ancestral’ property
but the inheritance is as a self acquired property in the hands of the successor and not as an
HUF property although the successor(s) indeed inherits ‘ancestral’ property i.e a property
belonging to his paternal ancestor.

(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into
existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an
individual’s property is thrown into a common hotchpotch. Also, once a property is thrown
into a common hotchpotch, it is necessary that the exact details of the specific
date/month/year etc of creation of an HUF for the first time by throwing a property into a
common hotchpotch have to be clearly pleaded and mentioned and which requirement is a
legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual
details of the cause of action must be clearly stated.

Thus, if an HUF property exists because of its such creation by throwing of self-acquired
property by a person in the common hotchpotch, consequently there is entitlement in
coparceners etc to a share in such HUF property.

(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and
such status of parties qua the properties has continued after 1956 with respect to properties
inherited prior to 1956 from paternal ancestors. Once that status and position continues even
after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to
seek partition of the properties.

(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral
property from paternal ancestors, as HUF could have been created prior to 1956 by throwing
of individual property into a common hotchpotch. If such an HUF continues even after 1956,
then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property.

Law laid by Supreme Court now

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:-

(i) 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).

(ii) 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.

(iii) 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.

(iv) 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.

(v) 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.

(vi) 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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In case of ancestral property

As per Hindu Law, a person automatically acquires the right to his or her share in the
ancestral property at the time of their birth. An ancestral property is the one which is
inherited up to four generations of male lineage. A property is regarded ancestral under two
conditions - if it is inherited by the father from his father, that is the grandfather after his
death; or inherited from the grandfather who partitioned the property during his lifetime. In
case, the father acquired the property from grandfather as a gift, it will not be regarded as an
ancestral property.

A son can claim his share in an ancestral property even during the lifetime of his father. In
any case, the applicant seeking his share in the property must prove his succession. However,
the act does not count a stepson (the son of the other parent with another partner, deceased or
otherwise) among the Class I heirs.

The court, in some cases, allows a stepson to inherit the father’s property. For instance, in a
case addressed by the Bombay High Court, the applicant was the son of a deceased Hindu
woman’s issue with her first husband. The woman acquired the property from her second
husband who did not have any legal heir except his wife. The court upheld the stepson’s
claim and declared that after the woman’s death, her son - the stepson of the second husband
- could claim his succession over the property. This decision was made when the nephews
and grand-nephews of deceased second husband claimed title to the property.
In case of self-acquired property

The law says that a son does not have a legal right over the self-acquired property of his
parents. However, he could claim his share if he can prove his contribution towards the
acquisition of the property. Also, there is no chance for a son in receiving a share in the self-
acquired property if his father has bequeathed his property to someone else, by means of a
will, or a gift deed. He may be allowed to use the property on permission, but his parents are
not under any obligation to allow him to live there. Moreover, a grandson does not have
rights over the self-acquired property of his grandfather.

If father gifts a property

A property is not considered as an ancestral property if it was gifted by a father to his son.
Therefore, an individual cannot claim his share in a property which was gifted to his father by
his grandfather. The property which a son or a daughter receives as a gift from the father
becomes their self-acquired property. In such cases, the grandchildren have no legal right in a
property their grandfather gifted to his son or daughter which he could have gifted to any
other person, too. Such a property is considered as self-acquired property unless there is a
clear expression of intention by the grandfather to make it an ancestral property.

Supreme Court puts Final Death Nail on

Concepts of Ancestral Property & Joint
Family Property, Read Judgment

03 Mar 2016

Categories : Latest News Uncategorized

March,3,2016:
In a Landmark Judgment pronounced by Supreme Court of India yesterday in case titled
Uttam vs Subagh Singh, Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has relaid 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.

The suit was filed by a Son for partition, in Devas, Madhya Pradesh, against his father and his
father’s three brothers. He claimed a 1/8th share in the suit property on the footing that the
suit property was ancestral property, and that, being a coparcener, he had a right by birth in
the said property in accordance with the Mitakshara Law.

It was ruled by SC that on the date of the birth of the appellant in 1977 the said ancestral
property, not being joint family property, the suit for partition of such property would not be
maintainable.

Read also : Supreme Court rules, Govt is owner of Rs.2000 Crore worth Land in this city

Concept of Ancestral Property

Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is
ancestral property.

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.
1. This property should be four generation old.
2. 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.
3. 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.
4. 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.
5. Properties inherited from mother, grandmother, uncle and even brother is not ancestral
property. Property inherited by will and gift are not ancestral properties.

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

In Mulla’s Principles of Hindu Law (15th Edition), it is stated at page 289 :

“………. if A inherits property, whether movable or immovable, from his father or father’s
father, or father’s father’s father, it is ancestral property as regards his male issue. If A has no
son, son’s son, or son’s son’s son in existence at the time when he inherits the property, he
holds the property as absolute owner thereof, and he can deal with it as he pleases ………. A
person inheriting property from his three immediate paternal ancestors holds it, and must hold
it, in coparcenary with his sons, sons’ sons and sons’ sons’ sons’ but as regards other
relations he holds it and is entitled to hold it, as his absolute property.”

In case titled Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and
Others, (1986) 3 SCC 567, it was held that after passing of the Hindu Succession Act, 1956
the traditional view that on inheritance of an immovable property from paternal ancestors up
to three degrees, automatically an HUF came into existence, no longer remained the legal
position in view of Section 8 of the Hindu Succession Act, 1956.

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This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter
followed by the 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 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.

Classification of property under Hindu Law

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

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(i) Coparcenary property; and

(ii) Separate property.

Coparcenary property is again divisible into-

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(i) ancestral property and

(ii) 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.
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Law laid by Delhi High Court

In case titled Surender Kumar vs Dhani Ram CS (OS) No.1737/2012 decided on 18th
January, 2016 Hon'ble Mr. J. Valmiki Mehta of Delhi High Court ruled-

(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF
existing at the time of the death of such a person, inheritance of an immovable property of
such a person by his successors-in-interest is no doubt inheritance of an ‘ancestral’ property
but the inheritance is as a self acquired property in the hands of the successor and not as an
HUF property although the successor(s) indeed inherits ‘ancestral’ property i.e a property
belonging to his paternal ancestor.

(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into
existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an
individual’s property is thrown into a common hotchpotch.

Also, once a property is thrown into a common hotchpotch, it is necessary that the exact
details of the specific date/month/year etc of creation of an HUF for the first time by
throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and
which requirement is a legal requirement because of Order VI Rule 4 CPC which provides
that all necessary factual details of the cause of action must be clearly stated.

Thus, if an HUF property exists because of its such creation by throwing of self-acquired
property by a person in the common hotchpotch, consequently there is entitlement in
coparceners etc to a share in such HUF property.

(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and
such status of parties qua the properties has continued after 1956 with respect to properties
inherited prior to 1956 from paternal ancestors. Once that status and position continues even
after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to
seek partition of the properties.

(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral
property from paternal ancestors, as HUF could have been created prior to 1956 by throwing
of individual property into a common hotchpotch. If such an HUF continues even after 1956,
then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property.

Law laid by Supreme Court now

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:-

(i) 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).
(ii) 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.

(iii) 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.

(iv) 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.

(v) 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.

(vi) 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

Read Full Judgment Here-

SC on Concepts of Ancestral Property

Tags : Ancestral Property Joint Family Property Supreme Court

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