INTRODUCTION
In India, ancestral land is very important to both culture and the law. These things, which are passed down from one generation to the next, often show a family’s past, traditions, and feelings. The complicated legal question of whether family property can be sold without the permission of heirs needs to be carefully looked at considering the relevant laws and case law. We will talk about the details of successor rights and selling ancestral property in India in this piece.
‘Property’ comes from the Latin term ‘Properietat’, meaning a thing owned. Though passable, it cannot be destroyed. The Indian concept of ancestral property is ancient. Hindu law divides the property into self-acquired and ancestral. Any property bought or obtained by sale, gift, or will is self-acquired. Nothing legal can be claimed over the property. Any undivided property owned by four generations of a family is ancestral property. It becomes self-acquired property when co-parceners divide it.
UNDERSTANDING WHAT IS ‘ANCESTRAL PROPERTY’
Inheritances from one’s family lineage are known as ancestral property. Custom dictates that it must be passed down via the holder’s father, grandpa, and great-grandfather to be considered a true family heirloom. Nevertheless, because of judicial interpretations and changes to the law, this meaning has changed throughout the years. The current Hindu legal system in India recognizes ancestral property as an undivided piece of land owned by a family with rights extending back four generations or more. A piece of property cannot be legally considered “ancestral” if it has been partitioned. Ancestral property becomes self-acquired property after it is distributed according to the legal method and relevant regulations. Until it is no longer an ancestral property, the HUF’s[1] Karta will oversee it.
An ancestral property is that which a Hindu descendant acquired through his or her progenitors. In the absence of a partition, the property ought to have been acquired by the great-grandfather; furthermore, property inherited through bequest or will is not regarded as ancestral property. The Hindu Succession Act of 1956 prohibited the inheritance of property and denied women any claim to ancestral property. However, as of the 2005 Hindu Succession Amendment Act, daughters, irrespective of their marital status, are now entitled to an equivalent portion of ancestral property as males. As ancestral property, possessions bequeathed by the mother, grandmother, maternal uncle, and brother are not eligible for classification[2].
ACT THAT REGULATE PASSING OF ANCESTRAL PROPERTY
Mitakshara and Dayabhaga Schools of Law
Hindu Succession Act of 1956 – The Hindu Succession Act controls the passing on of family goods. Under the Act, the Mitakshara and Dayabhaga schools are approved. These are two of the most important schools of Hindu law. The Mitakshara school, which is popular across most of the country, says that the coparceners (male descendants of a common ancestor) uphold the coparcenary concept. In this type of agreement, all co-owners usually have to agree to the sale of ancestral land.
The Dayabhaga School, which is followed in some parts of West Bengal, Assam, and Tripura, doesn’t understand the idea of coparcenary. Instead, each heir gets a certain amount of the land and is free to do what they want with it.
Amendments to the Hindu Succession Act – In 2005, the Hindu Succession Act underwent a substantial amendment to confer equal rights to daughters regarding their forefathers’ property. Historically, coparceners were exclusively considered to be male heirs. The amendment granted daughters equal rights and responsibilities as sons concerning coparcenary property. Consequently, it can be inferred that daughters possess the authority to participate in the distribution of inherited assets.
WHO CAN CLAIM ANCESTRAL PROPERTY AND WHO CAN SELL ANCESTRAL PROPERTY ?
Claim – If there is only one living co-owner, that person can buy the whole property. But if there is more than one co-owner, each person can only claim their share of the ancestral land[3]. Someone who is co-married can claim ownership of family property by asking for it to be split up. If ancestral property is split up through partition, it will no longer be considered ancestral property but rather self-acquired property. Shareholders will each get an equal share of the family’s property. Daughters now have the same rights to the land as sons thanks to the Hindu Succession Amendment Act of 2005.
Sell – Due to the right of four generations to ancestral property, the sale of said property by a single owner or a group of owners is not permissible. Consent must be obtained from every shareholder; in the absence of such consent, the sale of the property is prohibited. All shareholders are permitted to petition for the sale and partition of ancestral property. A coparcener is precluded from selling a portion of the property over which he or she has no legal claim[4].
CONDITIONS REQUIRED TO SELL ANCESTRAL PROPERTY
Kehar Singh vs. Nachittar Kaur and others[5] held that the family Karta can sell the property for legal purposes. The following conditions define legal necessity:
- Government debts and revenue must be paid.
- Payment for family upkeep and improvement.
- Marriage expenditures for male or female coparceners.
- For any funeral or family ceremonies judged performed.
- Selling the ancestral property will cover litigation costs.
- To defend a family member against serious allegations.
- To pay family company or other commercial debts.
If any of the foregoing conditions are met, the family Karta can sell the ancestral property without protest from the other coparcener. Otherwise, each coparcener must consent to selling ancestral property. If consent was not obtained, the coparcener might contest the selling deed.
CAN ANCESTRAL PROPERTY BE SOLD WITHOUT CONSENT?
- The approval of all legal successors (co-sharers) is usually required before any disposition, donation, or sale of ancestral property can be made unless a particular legal provision permits such a transaction.
- All coparceners, or legal heirs, hold the property jointly by birth under the Hindu Succession Act if it qualifies as ancestral property. The approval of all coparceners is typically necessary for any activity about the ancestral property, including but not limited to sales or donations.
- Although a person has the right to distribute their property in a will according to their wishes, it is usually not possible to leave ancestral property without the approval of the other legitimate heirs. A person’s ability to direct the allocation of their assets is determined by their will.
- An heir who feels wronged by an attempt to transfer or sell family assets without their permission may file a lawsuit to stop the transfer or sale. If these deals infringe on the successors’ legal rights, the courts may strike them down.
CAN A FATHER SELL THE ANCESTRAL PROPERTY WITHOUT THE CONSENT OF HIS SON?
If the son is under the age of 18, the father has the authority to sell the ancestral property without the son’s approval. If, on the other hand, the son is not a juvenile, the father is not permitted to sell the ancestral property without first obtaining his permission. If the son is under the age of 18, the patriarch of the family has the authority to sell the property without the son’s approval.
CONCLUSION DRAWN
Selling ancestors’ property without their consent is complicated by Indian law, culture, and family dynamics. Recent legislative changes have established daughters’ coparcener rights, promoting gender equality in property disputes. This amendment makes all successors’ authorization important when analyzing property transactions, regardless of gender.
However, unanimous consent may be difficult to implement, especially in households with frequent arguments or distance. Such issues may lead to lengthy judicial fights. When consensus cannot be reached, partition actions may allow interested parties to sell or keep their share as suitable. Successors’ rights and cultural heritage protection must be balanced to solve the situation. The law requires unanimous consent, although unique circumstances may need a deviation. Courts may intervene if heirs cannot approve or if family interests justify the transaction.
Author(s) Name: Dhriti Kawale (University of Mumbai Law Academy)
Reference(s):
[1] Hindu Undivided Family
[2]Mohammad Hussain Khan v. Babu Kishya Nandan Sahai, 1937 64 I.A. 250
[3]K.R. Ramachandra Rao v. The Commissioner of wealth tax AIR 1963 Mad 280
[4]Sukhram & Another vs Gauri Shankar & Anr 1968 AIR 365
[5]Kehar Singh vs. Nachittar Kaur and others (2018) 14 SCC 445
