What Is A Property?
The term property has been derived from the Latin word “Properiatat” which means something owned by a person. The human, a materialistic being, cannot sustain without property. Property in layman’s language is a physical or an intangible entity that is owned by the person or jointly by a group of persons. It has economic, socio-political, religious as well as legal connotations.
In the Legal sense, property is defined across a lot of acts and enactments.
In Sale of Good Acts, 1930, Section 2(11), the term property is defined as the “general property in good, not merely a special property.” Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines the term property as “ property of any kind, whether movable or immovable, tangible or intangible and includes any right to interest in the property.”
Types Of Property
There are broadly two types of property:
1. Movable property: Defined under Section 3(6) of the General Clauses Act as “the property of every description, except immovable property”. Section 2(9) of the Registration Act, 1908 defines the property as “Movable property includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.”
2. Immovable property: Section 3 of the Transfer of Property Act, states that immovable property does not include standing timber, growing crops or grass. Section 3(26) of the Registration Act, 1908 states, “immovable property includes land, building, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of the land, and things attached to the earth or permanently fastened to anything which is attached to earth but not standing timber, growing crops nor grass.”
In Mohammad Ibrahim v. Northern Cricars Fibre Trading Co, the court held that a piece of attached machinery on a cement platform and iron pillars fixed in the ground were held to be immovable property.
Ancestral Property Under The Hindu Succession Act:
Hindu Succession Act, of 1956 aims at amending and codifying the law about the intestate succession amongst Hindus, it applies to Hindus and Buddhists, Jains, and Sikhs. The Act laid down a uniform and comprehensive system of inheritance and succession into one act.
There are two major schools under the Hindu Succession Act which are taken into great consideration while understanding the concept of ancestral property and its partition in Hindus: Mitakshara Families and Dayabhaga school
- Mitakshara School:
Two of the main religious laws in ancient India were the Shruti (divine law) and Smriti (collections of divine law by the sages of the distant past). Amongst the Smritis, two of the most well-known classics were the Manu Smriti and the Yagyavalkya Smriti. Mitakshara’s commentary was written by Vighaneshwara in the late 11th century AD. This is the major treatise that has been taken into consideration for the succession of property in India.
Under this law pitrvanshiya or patrilineal joint families collectively owing ancestral properties from generation to generation are the normal social norm in Indian society.
According to Hindu law, ancestral property is acquired by the grandfather and father to the present generation without being partitioned. The property should be four generations old and the three generations should not have that partitioned. Even women have the right to ancestral property.
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- 1.1.Family Structure And Property In Mitakshara School:
The family is based on consanguinity, affinity and adoption which may include males of successive generations together with wives and unmarried daughters. The joint family is called a Coparcenary. The ancestral property is called Paitrik Sampati which is jointly owned by him, his sons, grandsons, and great-grandsons, called coparceners. The doctrine of Jammswatavada ie. The rule of the right to property by birth exists.
The Coparceners in this kind of joint family do not have any fixed shares in the family property. In Kamla Devi v. Bachulal Gupta ( AIR 1957 SC 434), the court held that the property that a man obtains as a consequence of the partition of any of his ancestral property is the ancestral property as regards his male children whenever they are born whether before or after the partition.
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- 1.2.Self-Acquisition Property:
The coparceners in general are free to acquire and hold separate property or self-acquired property which is also known as sapratibandha daya (obstructed heritage).
After the death of the acquirer’s death, this property will not devolve on the surviving member of the joint family but will go to legal heirs as per the applicable law of inheritance.
- Dayabhaga School:
A treatise on property and succession called Dayabhaga was written by the great jurist Jimutavahana. Unlike Hindu law, Dayabhaga law and Muslim law do not recognize the concept of ancestral property.
Indian Succession Act, 1925
This law governs the Hindus, Sikhs, Christians, Jain, Buddhists and in certain provisions Muslims as well. This act deals with intestate and testamentary succession. It lays down proper procedure in a case when the person dies intestate, where the property is shared based on Class I and II heirs.
This act further focuses on the differentiation between self-acquired and ancestral property. Equal status is given to both male and female descendants in this act.
What Is An Ancestral Property?
Any property that is acquired by four generations of the same family without being partitioned by the earlier three generations. Ancestral property is different from self-acquired property which is brought or received by gift deed or inherited as a legal heir.
In Sarvamma v. UP Virupakshaiah (2010 SCC OnLine KAR 136), it was held by the court that the ancestral property is inherited up to four generations of male lineage and must remain undivided throughout lineage.
Types Of Ancestral Property
1. Property inherited from Paternal Ancestor
2. Property inherited from a maternal grandfather
3. Property acquired from the Gift/will of the ancestor
Who Can Sell Ancestral Property?
As the ancestral property is owned and possessed by four generations, it cannot be sold by one or a few of the owners alone. Any partition or sale of the ancestral property must have the consent of all the shareholders of that specific ancestral property.
When Can The Ancestral Property Be Sold?
In K.C. Laxmana v. K.C. Chandrappa Gowda & Anr. (2022 LiveLaw (SC) 381)
the court observed that Karta/Manager of a Joint Family Property may alienate joint family property only in three situations, namely
- legal necessity: In Kehar Singh v. Nachittar Kaur and Others, (2018) 14 SCC 445, it was held that it is the Karta of the family can sell the property for the legal necessity of the family.
- for the benefit of the estate: If Karta considers that the value of the estate is diminishing, he can sell off the ancestral property. In Beereddy Dasaratharami Reddy v/ V. Manjunath LL 2021 SC 732, where a Karta has alienated a joint Hindu family property for value either for legal necessity or benefit of the estate it would bind the interest of all undivided members of the family even when the are minors or widows.
- with the consent of all the coparceners of the family- In Thimmaiah and Ors V. Ningamma and Anr, the court held that where the alienation is not made with the consent of the coparceners of the family, it is voidable at the instance of the coparceners whose consent has not been obtained.
Is A Woman Considered A Coparcener Of Equal Inheritance As A Son?
With the coming up of the 20th Century and changes in the mindset of society, Women are not considered legal heirs with the same position as male heirs.
In Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1, the SC held that a woman/daughter shall also be considered a joint legal heir with a similar position to that of a male heir, irrespective of the fact whether the father was alive or not before the Hindu Succession Amendment Act, 2005.
Can The Father Sell The Ancestral Property Without The Consent Of His Son/ Daughter?
There are two situations and answers to this. In case the son or the daughter is a minor, then the father does not need the consent of the minor child. In NS Balaji v. The Presiding officer, Debts Recovery Tribunal and Others (2023 LiveLaw (SC) 853, the SC observed that a Karta of a Hindu Undivided Family has the right to sell/dispose of/alienate a Hindu Undivided Family property, even if a minor of the family has an undivided interest. However, if the son or the daughter is not a minor, then the father cannot sell the property without the consent of his son or daughter.
It was as held in K.C. Laxmana v. K.C. Chandrappa Gowda (2022 SCC OnLine SC 471), the SC held that a Hindu Father or any other managing member of the Hindu Undivided family has the power to make a gift of the ancestral property only for a pious purpose i.e. a gift for charitable or religious purpose.
In recent times with a surge in the cases of live-in relationships, the SC recently disposed of a case about the rights of the child born out of live-in relationships. In Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan 2022 SCC OnLine SC 737, the SC ruled that even children born from a live-in relationship have the coparcenary right to inherit the family’s property.
What If The Father Sells The Property Without The Consent Of His Major Son Or Daughter?
The aggrieved shareholders of the disputed ancestral property may file a suit in the court declaring the act of their father voidable. The court may look into the situation and pass a temporary or even permanent injunction in this view. In Prasanta Kumar Sahoo & Ors v. Charulata Sahu & Ors, the court held that the institution of a suit for a partition can be filed by any joint member of the family.
Conclusion:
Humans have a natural tendency to acquire and dispose of properties. Properties can be of two types: ancestral and self-acquired. Ancestral property is passed down by four generations of the same family without being partitioned. Self-acquired property is the property that is acquired by individuals themselves. As per Section 44 of the Transfer of Property Act, the owner can sell their share without the consent of other co-owners. However, they cannot sell the property or share in the property that is not completely owned by them.
Under the Limitation Act of 1963, the limitation period for unlawful selling of ancestral property is 12 years once the knowledge of the shareholder of the ancestral property is established.
A father cannot dispose of ancestral property without the consent of their children, whether sons or daughters. However, if the children are minors, the father can still sell the ancestral property.
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