We are 4 children's (3 son and 1 daughters) to our father. 1. My grand father got 8 acre of land after registered partition deed in 1970 with his brother. 2. After my grand father death all 8 acre got transferred to my father. So, please advice below points. 1. Is 8 acre property is self acquired to my grand father and my father.? if yes, pls explain in detail. 2. Is my grand father WILL is valid if he made it to only 3 grand-sons and not to grand daughter. 2. Can my father can give gift to any one of his son? if yes, can he gift when existing loan on the same property? 4. Can we get letter from Bank, If Gift not possible when property mortgaged?, 3. In my previous question most of the advice come as it will be self acquired property to my father and grand father. They can transfer or can make a Gift/WILL to any one of the son. But as per below statement they cannot gift or will as per their wish. Kindly guide me considering below statement. An ancestral property divided/ partitioned through a partition deed, family arrangement, etc. loses its ancestral character. The prerequisite of an ancestral property is that an ancestral property should not have been divided or partitioned by the family members, as once a division of the ancestral property takes place, the share or portion which each coparcener gets after division becomes his or her self acquired property. After partition, the share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issues. Here too, SC held that “so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
1) property which has remained undivided for four generations is ancestral property
2)in present case it is not ancestral property
3) will executed by grand father is valid
4) father cannot gift property during subsistence of loan
5) only after repayment of loan can father execute gift deed
Dear Sir, Still I am not clear on below point where it says even after partition, it will be treated as Ancestral property. “so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.
Judgment depends upon facts of each case
2) in your case partition between grand father and his brother was not of ancestral property
3) this judgment quoted by you deals with effect of partition on ancestral property
1. Since, your grandfather got the said property after registered partition , then after getting in partition , that property would be considered as self acquired property.
- Further, after his death his property would be devolved upon his legal heirs equally.
- If , your father was only son and no wife , then the said property would be devolved upon your father , and it will be considered his self acquired property .
2. Yes, due to being self acquired property
3. Yes , your father can gift that property to anyone after taking permission from the bank , if the property documents are mortgaged/lying with bank.
4. Yes, it can be gifted with the permission of the bank.
5. The property which is undivided for four generations is ancestral property
1. The property your grandfather inherited through a partition deed shall become his own and absolute property.
Similarly the property inherited by your father shall become his own and absolute property.
2. Since it was your grandfather's own and absolute proeprty, he can decide to transfer the same to anyone of his choicer and in any manner.
The left out person cannot legally do anything due to this grievance.
4. If the property is mortgaged for home loan or any other loan, then it cannot be transferred by gift or any other deed without redeeming the mortgage loan.
3. The property in question is not ancestral property hence the message you have furnished is not applicable to the property in question.
The explanation what you are trying to get an answer or clarification is for the ancestral property alone and not to the property in question which you have posted in the previous post.
The property in question is not ancestral in nature hence the information you have furnished now is not applicable to this situation.
After partition the property comes as self acquired property in the hands of the co sharer.
Dear Sir/Madam, Dear Sir,
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 ur ur grandfather has only one legal heir) Senario1: The property is self acquired by your Grandfather, in such case upon his demise interstate (without a will) the property would devolve upon ur Father and not you. In case your farther passes away before your grandfather then it such case it would be 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 acures 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 [deleted]. 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.
Plz dont pick random statements from the internet/Google
The partition happened in 1970
The GF died post that
That means succession opened after 1956 ie when the Hindu Succession Act was in force
Thus your father inherited the share which your GF got, as a legal heir
Your father would thus hold that share as his self acquired property
But it seems the GF prior to his demise had made a Will in which he gifted the share that came to him to his 3 grandsons
If that Will is duly proved then the share of the GF that he got on partition would go to his 3 grandsons
If the Will is not proved then the share would devolve on your father (assuming he was the only surviving legal heir of your GF)
If the property devolved on your father upon inheritance and did not go to the 3 grandsons as per the Will (as that Will was either not put to proof or disproved) then the father being the owner of that share would be entitled to make a gift deed to any person of his choice.
He can gift even when the property is under a mortgage by taking NOC of the bank
The random statements picked by you from the internet pertain to a situation prevailing when the person dies prior to enactment of the Hindu Succession Act ie before 1956
After 1956, once an ancestral property is partitioned, the share which goes to the coparcenors become their self acquired property and the incidents of old Hindu would not apply since the provisions of Hindu Succession Act get attracted
Dear Sir,
Firstly,
The term self-acquired indicates that the property has been acquired by a coparcener by his own exertion without assistance of family funds. Property acquired as legal heir or by a testamentary document as will, property inherent from mother, brother, grandmother property it is self-acquired property.
Generally, it connotes that whenever an ancestor inherits any property from any of his paternal ancestors up to three generations above him, then his legal heirs up to three generations below him would get an equal right as coparceners in that property. Such a property should not have been divided by the members of the joint Hindu family. When a division or a partition happens in a joint Hindu family, it becomes “self-acquired" property in the hands of a family member who has received it. Any property that passes undivided down four generations of male lineage is called ancestral property which here is not the case.Therefore, the property acquired by your grandfather is self acquired.
Secondly,
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.Therefore the will is valid.
Thirdly,
A mortgaged property can be gifted after redemption of mortgage. You can clear the outstanding loan dues and can gift the property without any hassle. In case, you gift/Will a mortgaged property, the donee besides accepting the Gift, also has to accept the burden/obligation of mortgage.
Lastly,
The statement you referred to talks about the fact that the property inherited by a person shall be treated as his separate property till the time another heir for that property is born (i.e. his/her brother/sister). After that person has a sibling, they will be coparceners.
