Ancestral property sold without consent
8 months ago
My ancestral property was sold by my father without the consent of my mother and mine. We came to know about that after the demise of my father in 2017 and till then it was too late as the property was already registered with the new owner. We felt shattered. Is there any way to bring back our property
A.Dear Client,
Ancestral property cannot be sold or transferred without the consent of other coparceners/legal heirs. Article 65, Schedule I of the Limitation Act, 1963 prescribes a limitation of l2 years for a suit for possession of immovable property or any interest therein based on the title. Article 65 is an independent article applicable to all suits for possession of immovable property based on title, i.e., proprietary title as distinct from the possessory title. Article 64 governs suits for possession based on possessory rights. The period of l2 years from the date of dispossession is the starting point of limitation under Article 64. The burden of proving the date of dispossession is on the plaintiff who, in order to succeed, must prove that dispossession was not prior to 12 years of the date of filing of the suit. So, reach out to an Advocate for guidance and steps to get back possession of the ancestral property if it is not barred by limitation yet.
Ancestral property cannot be sold or transferred without the consent of other coparceners/legal heirs. Article 65, Schedule I of the Limitation Act, 1963 prescribes a limitation of l2 years for a suit for possession of immovable property or any interest therein based on the title. Article 65 is an independent article applicable to all suits for possession of immovable property based on title, i.e., proprietary title as distinct from the possessory title. Article 64 governs suits for possession based on possessory rights. The period of l2 years from the date of dispossession is the starting point of limitation under Article 64. The burden of proving the date of dispossession is on the plaintiff who, in order to succeed, must prove that dispossession was not prior to 12 years of the date of filing of the suit. So, reach out to an Advocate for guidance and steps to get back possession of the ancestral property if it is not barred by limitation yet.
Helpful
Helpful
Share
A.Dear client,
The properties of the paternal ancestors should be sold only with the consent of the successors. Without consent, these properties cannot be sold. But, it can be regained by filing a suit for the partition in a court. Similarly, if their part of the share is denied, one can send a legal notice demanding their rights.
The properties of the paternal ancestors should be sold only with the consent of the successors. Without consent, these properties cannot be sold. But, it can be regained by filing a suit for the partition in a court. Similarly, if their part of the share is denied, one can send a legal notice demanding their rights.
Helpful
Helpful
Share
A.Dear Sir,
First understand the definition of ancestral property if it falls in the said definition you can proceed legally.
================================================================================
What does the grandparent's property law in India state? Does the grandson own the right to the property?
All property's owned by a Hindu person devolves onto his class one legal heir's.
Now to the specific scenario's in ur example (for sake of convenience I'm presuming your grandfather has only one legal heir)
Senario1: The property is self acquired by your Grandfather, in such case upon his demise intestate (without a will) the property would devolve upon ur Father and not you. In case your father passes away before your grandfather then in such case it would devolve upon you, your mother and ur siblings equally.
Scenario 2: the property in question is self acquired by ur grandfather father ( ur great grand farther) - would devolve same as scenario 1.
Scenario 3: the property in question is self acquired by ur grandfather grand father ( ur great great grand farther) - would devolve same as scenario 1.
Scenario 4: the property in question is self acquired by ur grandfathers great grand father ( ur great great great grand farther) - then in such a case you would be entitled to the property by birth as it becomes ur ancestral property.
To give you more clarity on the concept of Ancestral Property's : any property which passes undivided down 4 generations of male lineage is called ancestral property. The right to such property acquires at birth unlike other laws of inheritance where right arises upon the death of the the owner.
Hope this brings some clarity to your question and your sense of entitlements.
Meaning of ancestral property in India-An ancestral property means a propertywhich is devolved upon heirs by the 3 generations above them; father, father's fatheror father's fathers' father. ... That means when a coparcener acquires his share inancestral property than he can make a will to that share and bequest it.
Meaning of ancestral property in India-An ancestral property means a property which is devolved upon heirs by the 3 generations above them; father, father’s father or father’s fathers’ father. It passes to the next three generations.
Meaning of will-A will means a document in which a person specifies the method to be applied in management and distribution of properties after his death.
The basic principle involved is that the property should be four generations old. The right to use and acquire property is accrued by persons through birth itself. The division of property is per stripes i.e. that share of one generation is calculated first than the share of successive generations is subdivided according to share of their predecessor. These basic elements are for governing majorly the Hindus.
If A inherits property, whether movable or immovable, from his father or father’s father, or father’s father’sfather, 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.”[1]
Now answer to the question is that that will to ancestral property is not entirelyillegal. That means when a coparcener acquires his share in ancestral property than he can make a will to that share and bequest it. However will shall be executed after the death of the testator and if the coparcener before acquiring a share makes a will than that will be illegal. Share in ancestral property will be inherited by coparceners. So he can make a will to his share in ancestral property.As whatever he acquires is his share now and he can dispose his assets according to his wishes.
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-
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.
=====================================================
HINDU WOMENS PROPERTY…. HOW IT DEVOLVELS
A hindu woman holds the property as an absolute owner and now she can dispose off the property as her own property. The concept of ancestral property does not apply to a property held by a hindu woman. Your maternal grandmother (naani) can will the property to anyone. However, if she dies intestate (without a will) then the property will devolve as per the rules of succession in Hindu Succession Act, specifically, section 15. In that case, the property goes to the legal heirs of the woman on her father’s side if she received the property from her father’s side and to her husband’s side if she received the property from her husband side.
1. Home
2. India news
3. Daughters born before 2005 have right in their fathers’ property, says Supreme Court
Daughters born before 2005 have right in their fathers’ property, says Supreme Court
In a ruling that will ensure equality between men and women, the Supreme Court on Friday made it clear that women born before 2005 have equal right on ancestral property.
In a ruling that will ensure equality between men and women, the Supreme Court on Friday made it clear that women born before 2005 have equal right on ancestral property.
In a ruling that will ensure equality between men and women, the Supreme Court on Friday made it clear that women born before 2005 have equal right on ancestral property. The apex court stated that the Hindu Succession Act 2005 which gives equal rights to daughters on ancestral property, will be applied to all women including those born before the year.
A bench of Justices AK Sikri and Ashok Bhushan said that the share in ancestral property could not be denied, to a woman, on the ground that she was born before the law was passed, and the law was applicable in all property disputes filed before 2005 and pending when the law was framed. The bench added that the amended law stipulated that a daughter would be a “coparcener” (one who shares equally in inheritance of an undivided property) since birth, and have the same rights and liabilities as a son.
“The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters. These changes have been sought… on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected,” the bench was quoted as saying by TOI.
Passing the order on a plea filed by two sisters seeking a share in their late father’s property, the court said that the law was amended to give women equal status with men in matters related to ancestral property. The two sisters approached the apex court after the trial court in 2007 dismissed their plea saying that they were not entitled to any share as they were born before 2005. The High Court also rejected their plea. Setting aside the High Court order, the Supreme Court said that the year of birth was not a criterion to decide whether a woman was covered under the amended law.
In 2015, the Supreme Court had said that the 2005 amendment in Hindu law will not give property rights to a daughter if the father died before the amendment came into force. The court held that the amended provisions of the Hindu Succession (Amendment) Act, 2005, could not have retrospective effect despite it being a social legislation. The court said the father would have had to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings.
=======================================================
Consequence of Amendment made by Hindu Succession (Amendment) Act, 2005 – rights & liabilities of a daughter member
• Daughter shall be a Coparcener of Hindu Family Property.
• If a Hindu dies, the coparcener property shall be allotted to the daughter as is allotted to sons.
• If a female coparcener dies before partition, then children of such coparcener would eligible for allotment assuming a partition had taken place immediately before her demise.
• No recovery is made for ancestors dues from son, grandson, or great grandson by applying doctrine of pious obligation.
• A female member can also seek partition of the dwelling house where the family resides.
• A widow of a pre-deceased son even though remarried is now eligible for share in property as legal heir of the pre-deceased son of the family.
• A female can also dispose of her share in coparcenery property at her own will.
Expenses incurred on Marriage of a Daughter by HUF
Even daughter has become coparcener after Amendment of Hindu Succession Act, 1956, but marriage of daughter still an obligation of the Family under Hindu law.
Thus, reasonable amount of gift given on her marriage should not objected by the male coparcener.
Devolution of Interest in Co-parcenary Property
Section 6 as substituted by the Hindu Succession (Amendment) Act, 2005.
Section 6(1) provides that w.e.f. 06/09/2005, in a joint Hindu family governed by the Mitakshara law, the daughter of coparcener shall by birth become a coparcener in her own right in the same manner as the son. She shall have the same rights in the coparcenery property as she would have had if she had been a son and she shall be subject to the same liabilities in respect of the said coparcenary property as that of a son
Section 6(2) of the new post amendment section 6 provides that any property to which a female Hindu becomes entitled by virtue of sub section (1) shall be held by her with the incidents of coparcenary ownership. And property is capable of being disposed of by her by testamentary disposition.
Section 6(3) provides that
– Where a Hindu dies after the commencement of Hindu Succession Act 2005, his interest in the property of joint family, Shall devolve by testamentary of intestate succession.
– As the case may be, under this Act and not by survivorship, & the coparcenary property shall be deemed to have been divided as if a partition has taken place and, daughter is allotted the same share as son.
The share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre¬deceased daughter. [—- do — with the predeceased child of pre-deceased son or a pre-deceased daughter].
Section 6(4) provides that no court shall recognize any right to proceed against a son, grandson, or great grandson for the recovery of any debt due from his father, grand father or great grand father.
Explanation to Section 6(5) provides that partition for the purposes of this section means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.
Section 6(6) provides that nothing contained in this section shall apply to a partition, which has been effected before the 20-12-2004.
Class I heir
– Son
– Son of Predeceased son.
– Son of Predeceased son of Prede¬ceased son.
– Widow
– Widow of Predeceased son
– Widow of Predeceased son of Predeceased son
– Mother
– Daughter
– Son of Predeceased Daughter.
– Daughter of Predeceased Daugh¬ter.
– Daughter of Predeceased Son
– Daughter of Predeceased Son of Predeceased Son.
– Son of Predeceased Daughter of Predeceased Daughter.
– Daughter of Predeceased Daughter of Predeceased Daughter
Section 8 in The Hindu Succession Act, 1956
8. General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
First understand the definition of ancestral property if it falls in the said definition you can proceed legally.
================================================================================
What does the grandparent's property law in India state? Does the grandson own the right to the property?
All property's owned by a Hindu person devolves onto his class one legal heir's.
Now to the specific scenario's in ur example (for sake of convenience I'm presuming your grandfather has only one legal heir)
Senario1: The property is self acquired by your Grandfather, in such case upon his demise intestate (without a will) the property would devolve upon ur Father and not you. In case your father passes away before your grandfather then in such case it would devolve upon you, your mother and ur siblings equally.
Scenario 2: the property in question is self acquired by ur grandfather father ( ur great grand farther) - would devolve same as scenario 1.
Scenario 3: the property in question is self acquired by ur grandfather grand father ( ur great great grand farther) - would devolve same as scenario 1.
Scenario 4: the property in question is self acquired by ur grandfathers great grand father ( ur great great great grand farther) - then in such a case you would be entitled to the property by birth as it becomes ur ancestral property.
To give you more clarity on the concept of Ancestral Property's : any property which passes undivided down 4 generations of male lineage is called ancestral property. The right to such property acquires at birth unlike other laws of inheritance where right arises upon the death of the the owner.
Hope this brings some clarity to your question and your sense of entitlements.
Meaning of ancestral property in India-An ancestral property means a propertywhich is devolved upon heirs by the 3 generations above them; father, father's fatheror father's fathers' father. ... That means when a coparcener acquires his share inancestral property than he can make a will to that share and bequest it.
Meaning of ancestral property in India-An ancestral property means a property which is devolved upon heirs by the 3 generations above them; father, father’s father or father’s fathers’ father. It passes to the next three generations.
Meaning of will-A will means a document in which a person specifies the method to be applied in management and distribution of properties after his death.
The basic principle involved is that the property should be four generations old. The right to use and acquire property is accrued by persons through birth itself. The division of property is per stripes i.e. that share of one generation is calculated first than the share of successive generations is subdivided according to share of their predecessor. These basic elements are for governing majorly the Hindus.
If A inherits property, whether movable or immovable, from his father or father’s father, or father’s father’sfather, 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.”[1]
Now answer to the question is that that will to ancestral property is not entirelyillegal. That means when a coparcener acquires his share in ancestral property than he can make a will to that share and bequest it. However will shall be executed after the death of the testator and if the coparcener before acquiring a share makes a will than that will be illegal. Share in ancestral property will be inherited by coparceners. So he can make a will to his share in ancestral property.As whatever he acquires is his share now and he can dispose his assets according to his wishes.
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-
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.
=====================================================
HINDU WOMENS PROPERTY…. HOW IT DEVOLVELS
A hindu woman holds the property as an absolute owner and now she can dispose off the property as her own property. The concept of ancestral property does not apply to a property held by a hindu woman. Your maternal grandmother (naani) can will the property to anyone. However, if she dies intestate (without a will) then the property will devolve as per the rules of succession in Hindu Succession Act, specifically, section 15. In that case, the property goes to the legal heirs of the woman on her father’s side if she received the property from her father’s side and to her husband’s side if she received the property from her husband side.
1. Home
2. India news
3. Daughters born before 2005 have right in their fathers’ property, says Supreme Court
Daughters born before 2005 have right in their fathers’ property, says Supreme Court
In a ruling that will ensure equality between men and women, the Supreme Court on Friday made it clear that women born before 2005 have equal right on ancestral property.
In a ruling that will ensure equality between men and women, the Supreme Court on Friday made it clear that women born before 2005 have equal right on ancestral property.
In a ruling that will ensure equality between men and women, the Supreme Court on Friday made it clear that women born before 2005 have equal right on ancestral property. The apex court stated that the Hindu Succession Act 2005 which gives equal rights to daughters on ancestral property, will be applied to all women including those born before the year.
A bench of Justices AK Sikri and Ashok Bhushan said that the share in ancestral property could not be denied, to a woman, on the ground that she was born before the law was passed, and the law was applicable in all property disputes filed before 2005 and pending when the law was framed. The bench added that the amended law stipulated that a daughter would be a “coparcener” (one who shares equally in inheritance of an undivided property) since birth, and have the same rights and liabilities as a son.
“The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters. These changes have been sought… on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected,” the bench was quoted as saying by TOI.
Passing the order on a plea filed by two sisters seeking a share in their late father’s property, the court said that the law was amended to give women equal status with men in matters related to ancestral property. The two sisters approached the apex court after the trial court in 2007 dismissed their plea saying that they were not entitled to any share as they were born before 2005. The High Court also rejected their plea. Setting aside the High Court order, the Supreme Court said that the year of birth was not a criterion to decide whether a woman was covered under the amended law.
In 2015, the Supreme Court had said that the 2005 amendment in Hindu law will not give property rights to a daughter if the father died before the amendment came into force. The court held that the amended provisions of the Hindu Succession (Amendment) Act, 2005, could not have retrospective effect despite it being a social legislation. The court said the father would have had to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings.
=======================================================
Consequence of Amendment made by Hindu Succession (Amendment) Act, 2005 – rights & liabilities of a daughter member
• Daughter shall be a Coparcener of Hindu Family Property.
• If a Hindu dies, the coparcener property shall be allotted to the daughter as is allotted to sons.
• If a female coparcener dies before partition, then children of such coparcener would eligible for allotment assuming a partition had taken place immediately before her demise.
• No recovery is made for ancestors dues from son, grandson, or great grandson by applying doctrine of pious obligation.
• A female member can also seek partition of the dwelling house where the family resides.
• A widow of a pre-deceased son even though remarried is now eligible for share in property as legal heir of the pre-deceased son of the family.
• A female can also dispose of her share in coparcenery property at her own will.
Expenses incurred on Marriage of a Daughter by HUF
Even daughter has become coparcener after Amendment of Hindu Succession Act, 1956, but marriage of daughter still an obligation of the Family under Hindu law.
Thus, reasonable amount of gift given on her marriage should not objected by the male coparcener.
Devolution of Interest in Co-parcenary Property
Section 6 as substituted by the Hindu Succession (Amendment) Act, 2005.
Section 6(1) provides that w.e.f. 06/09/2005, in a joint Hindu family governed by the Mitakshara law, the daughter of coparcener shall by birth become a coparcener in her own right in the same manner as the son. She shall have the same rights in the coparcenery property as she would have had if she had been a son and she shall be subject to the same liabilities in respect of the said coparcenary property as that of a son
Section 6(2) of the new post amendment section 6 provides that any property to which a female Hindu becomes entitled by virtue of sub section (1) shall be held by her with the incidents of coparcenary ownership. And property is capable of being disposed of by her by testamentary disposition.
Section 6(3) provides that
– Where a Hindu dies after the commencement of Hindu Succession Act 2005, his interest in the property of joint family, Shall devolve by testamentary of intestate succession.
– As the case may be, under this Act and not by survivorship, & the coparcenary property shall be deemed to have been divided as if a partition has taken place and, daughter is allotted the same share as son.
The share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre¬deceased daughter. [—- do — with the predeceased child of pre-deceased son or a pre-deceased daughter].
Section 6(4) provides that no court shall recognize any right to proceed against a son, grandson, or great grandson for the recovery of any debt due from his father, grand father or great grand father.
Explanation to Section 6(5) provides that partition for the purposes of this section means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.
Section 6(6) provides that nothing contained in this section shall apply to a partition, which has been effected before the 20-12-2004.
Class I heir
– Son
– Son of Predeceased son.
– Son of Predeceased son of Prede¬ceased son.
– Widow
– Widow of Predeceased son
– Widow of Predeceased son of Predeceased son
– Mother
– Daughter
– Son of Predeceased Daughter.
– Daughter of Predeceased Daugh¬ter.
– Daughter of Predeceased Son
– Daughter of Predeceased Son of Predeceased Son.
– Son of Predeceased Daughter of Predeceased Daughter.
– Daughter of Predeceased Daughter of Predeceased Daughter
Section 8 in The Hindu Succession Act, 1956
8. General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
Helpful
Helpful
Share
Read Related Answers
property issue
Dear Client,
Firstly you have your equal right to share of your ancestral property as per the 2005 amendment act where even women have equal right in the property. additionally nobody can threaten yo...
Property
Dear Client,
No other individual can sell your property without authentic documentation and consent. make sure you have had the right registered documents of the land and understand how the owner cou...
Covered garage
Dear Client,
The owner of a property is liable to pay the property tax levied by the local civic body i.e, the Municipal Authority. This tax may vary from one location to another and various other fac...
Government Land Occupying
Dear Client,
The Government land cannot be a subject matter of a transaction between the private parties. Instead, the Government acquires private land whenever required for public purposes under the...
Balcony extension
Dear Sir,
Yes, you can do so with the formal permission of either association people or builder. You may file representation before them and get consent.
Read Blogs on Property
Property Lawyers
Find Lawyers by Location
