A person is the exclusive owner of his self-acquired property.
However, under Hindu law, where a person possesses an interest in 'ancestral'
or 'coparcenary' property he is not the sole owner of it, because his son, his
son's son (grand son) and his son's son's son (great grandson) acquire a right by
birth in this property.
The term 'ancestral' denotes that the property had come from an ancestor.
The term 'ancestor' refers to three immediate paternal ancestors in a whole male
line i.e. father, grandfather and great-grandfather.
An Hindu Family is presumed to be a joint family. But there is no presumption
that a Joint Hindu Family possesses property.
Property held jointly by the members of a family is called 'joint family property'.
Where the property comes to the joint family by inheritance from ancestors it is
called 'joint family ancestral property'.
In the joint family property, all members of the joint family have some interest in
it, though not equal rights. The property is owned collectively by the
coparceners, while the non-coparceners have a right of maintenance out of the
joint family funds, and a right of residence in the joint family house.
The concept of 'coparcenary' is a narrower institution within a joint family, and
comprises only male members. A single male person cannot form a coparcenary.
At least two male members are required to constitute a Coparcenary. More over
a relationship of father and son is required for starting a coparcenary. A male up
to three generations from the last holder of the property have a right by birth in
the coparcenary property, and has a right to demand partition.
A joint family property and a joint family ancestral property is called
"Coparcenary property".
Devolution of such a coparcenary property, is through survivorship and
governed by Section 6 of the HSA, 1956.
Devolution through survivorship will continue only when a hindu male having
interest in co-parcenary property dies Without leaving any Class-I female legal
heirs. The moment there is a female Class-I heir present, then instead of the
entire property going by way of survivorship amongst the eligible coparcenars,
the interest of the deceased male will go by way of inheritance amongst his legal
heirs.
By the Amending Act of 2005, the incidents of survivorship has been completely
abolished. Now, if a male Hindu having undivided interest in coparcenary
property dies, the rule of survivorship will not apply to any class of heir, and his
interests will devolve by way of inheritance.
Property from Father to son
Apart from the coparcenary property which goes by way of survivorship (as
stated above), there are also instances where the property can devolve from
father to son by means of inheritance, gift or WILL.
Devolution by way of inheritance, gift or WILL can take place only with respect
to a Father's 'separate property' .
Which properties are called Separate Properties?
A property, that a Hindu male acquires, in his indivudual capacity, without using
Hindu Family Funds, will be the said individual's "Separate Property". It will
also include the following properties:
(a) acquired through his learning or special skills;
(b) received by way of prize or scholarship;
(c) inheritance by way of an obstructed heritage;
(d) received through gift / will (unless specifically declared to be treated as
'coparcenary property')
(e) govt. grants, unless it was specifically stated 'not to be treated as separate
property' / or 'to be treated as coparcenary property' ;
(f) acquired through adverse possession
(g) salary received through a job
(h) a property which cannot be called coparcenary property due to any reason.
(i) property inherited from any relation other than the father, father's father or
father's father's father.
Post HSA 1956 position
In point (i) above, it has been indicated that a property inherited from any relation
other than the father, father's father or father's father's father will be a separate
property. In other words, if a property is inherited from the father, father's father
or father's father's father the same will not be a 'separate property' but an
'ancestral property' i.e. a coparcenary property.
But this position stands drastically altered after the coming into force of HSA,
1956.
We have to specifically note that Sections 8 to 13, and Schedule-I to the HSA,
1956, govern the inheritance of the property of the male intestate.
While 'son' is a Class-I heir and inherits the property of his father upon his
father's death, the question that needs to be asked is: What is the character of
the inherited property in his hands vis-a-vis his male issue?
The devolution of the coparcenary property is from father to son, son's son, son's
son's son. (i.e. father, son, grand son and great grand son).
But, the heirs listed in the inheritance table as per Schedule-I is son, son of a
predeceased son; son of a predeceased son of a predeceased son. It does not
use the expression, son, grandson and great grandson.
The usage of the expression 'predeceased son' indicates that the son of a living
son will not be an heir and cannot succeed to the property of his grandfather in
his own right (which is the normal rule in the case of 'ancestral property'/
'coparcenary property'). The grandson of a living son will have no right over
the property left behind by his grand father.
If that be the case, the property of an intestate father inherited by a son, will be
his "separate property" and not ancestral property. The grand son of the
deceased will have no right to claim a share in the said property, so long as his
own father is alive.
There are also other finer points in this regard. But I am not touching those
points here.